# Gajendra Prasad Saxena v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 311
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-03-19
- **Case number:** Civil Misc. Writ Petition No. 20632 of 2009
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gajendra-prasad-saxena-v-state-of-u-p-ors-43305
- **Pages:** 10

## Headnote

Constitution of India, Art.-226-Doctrine
of
'Partial
quashing'-explained-where
invalidity can be emarked and separated
from valid part of order-while imposing
minor penalty-if major penalty inflicted
contrary to rules-it can be interfered by
Writ Court-without touching the minor
penalty-petition partly allowed.
Held: Para-25
In a position of this nature, this Court
exercising powers under Article 226 of the
Constitution of India can very well proceed
to partially quash an order if it finds that
the invalidity can be earmarked and
separated/excised from the otherwise
valid part of the order assailed before it. In
the facts of the present case, this Court
finds that the invalidity by which the
impugned order suffers pertains only to
the imposition of major penalties. The said
part of the order is severable and it is to
that extent alone that this Court feels
compelled to interfere.
Case Law discussed:
W.P. No. 10637 of 2007; 1997 (1) LLJ 831;
AIR 1960 SC 321; AIR 1966 SC 951; (2014) 12
SCC 106; (1976) 2 SCC 495; AIR 1963 SC 779.

## Text

1 All] Gajendra Prasad Saxena Vs. Statge of U.P. & Ors.
311
34. In view of the discussions
aforesaid, the writ petition succeeds and is
allowed, and the order impugned dated
10th January, 1995, and subsequent order
dated 6th April, 1995, as well as all
consequential action pursuant to it, are set
aside.
35. Before parting, however, this
Court would like to clarify that this
judgment has been delivered only in the
context of the orders passed by the
revisional court, and the claim of the
parties has not been adjudicated on
merits. Any observation made in this
judgment shall not prejudice the rights
and contentions of the parties in the
pending Suit No. 386 of 1989, which
would be determined by the competent
civil court, in accordance with law. It is
unfortunate that despite a direction issued
by the Division Bench of this Court in
FAFO No. 905 of 1995, the proceedings
of the suit have not been concluded so far.
The interim arrangement, so far as the
property is concerned, shall continue to be
governed by the order dated 15.5.1995
passed in Original Suit No. 386 of 1989,
as affirmed by the Division Bench of this
Court in FAFO No. 905 of 1995, on
27.9.1995. The proceedings of the suit
would be concluded forthwith by the civil
court on merits, by fixing short dates,
without granting any adjournment to
either of the parties, except by imposing
cost, which would not less than Rs.1,000/-
for a day.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Civil Misc. Writ Petition No. 20632 of 2009
Gajendra Prasad Saxena
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Anil Bhushan
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Doctrine
of
'Partial
quashing'-explained-where
invalidity can be emarked and separated
from valid part of order-while imposing
minor penalty-if major penalty inflicted
contrary to rules-it can be interfered by
Writ Court-without touching the minor
penalty-petition partly allowed.
Held: Para-25
In a position of this nature, this Court
exercising powers under Article 226 of the
Constitution of India can very well proceed
to partially quash an order if it finds that
the invalidity can be earmarked and
separated/excised from the otherwise
valid part of the order assailed before it. In
the facts of the present case, this Court
finds that the invalidity by which the
impugned order suffers pertains only to
the imposition of major penalties. The said
part of the order is severable and it is to
that extent alone that this Court feels
compelled to interfere.
Case Law discussed:
W.P. No. 10637 of 2007; 1997 (1) LLJ 831;
AIR 1960 SC 321; AIR 1966 SC 951; (2014) 12
SCC 106; (1976) 2 SCC 495; AIR 1963 SC 779.
(Delivered by Hon'ble Yashwant Varma, J.)
1. The petitioner, a Senior Assistant
in the Department of Food and Civil
Supplies has sought to assail the validity
of the order dated 22/5/2007 passed by
the respondent no.3 as affirmed in appeal
by the respondent no.2 vide is order dated
25/2/2009. In terms of the impugned
order and consequent to culmination of
312
 INDIAN LAW REPORTS ALLAHABAD SERIES
the disciplinary proceedings taken against
him he has been inflicted the following
punishments:
(a) A recovery of Rs.59927/- on
account of excess withdrawal from the
G.P.F. Account.
(b)
Recovery
of
a
sum
of
Rs.412789.68/- from him;
(c) the stoppage of one increment
with cumulative effect.
(d) the recordal of an adverse entry
in the character roll of the petitioner.
2. This order passed by the
respondent no.3 has been affirmed by the
respondent no.2 acting as the Appellate
Authority under the relevant rules.
3. This Court has heard Shri Adarsh
Bhushan in support of the writ petition
and Shri Ravi Shankar Prasad, learned
Additional
Chief
Standing
Counsel
appearing
on
behalf
of
the
State
respondents.
4. The salient facts which may be
noticed and as would be relevant for
disposal of the instant writ petition are as
follows. The petitioner was initially
appointed as a Class-III employee in the
respondent Department in 1975. He was
promoted to the post of Senior Assistant
in 1978 and upon attaining the age of
superannuation retired on 29/2/2008.
5. It appears that on 18/7/2005, a
charge-sheet was issued against him
alleging therein that because of his
negligence
and
misconduct
the
Government had suffered huge losses
consequent to his failure to rectify
supplies and accordingly disciplinary
proceedings were instituted against him.
Upon receipt of the said charge-sheet, the
petitioner appears to have elicited further
information from the Department vide his
letter dated 16/8/2005 and ultimately
submitted a reply on 26/9/2005 denying
the charges levelled against him. The
Inquiry Officer upon receipt of the reply
of
the
petitioner
appears
to
have
proceeded in the matter and ultimately
submitted a report dated 21/1/2006. The
objections of the petitioner were invited
upon the findings recorded in the said
inquiry report and after receipt of the
same and upon a consideration of the
reply submitted by the petitioner, the
impugned order dated 22/5/2007 came to
be passed.
6. Aggrieved by the aforesaid, the
petitioner preferred a Departmental appeal
which also came to be dismissed by the
order dated 25/2/2009.
7. Shri Adarsh Bhushan, learned
counsel for the petitioner has submitted
that the impugned order is clearly
arbitrary and illegal inasmuch as in the
course of the inquiry proceedings the
petitioner was neither called before the
Inquiry Officer to submit his case, no
witnesses were examined in his presence,
he was afforded no opportunity of crossexamination nor was the petitioner
provided
any
of
the
documentary
evidence relied upon and referred to in the
inquiry report. He has submitted that the
provisions of the U.P. Government
Servant (Discipline and Appeal) Rules,
1999 apply in the facts of the present case
and that since a major penalty of stoppage
of one increment with cumulative effect
had been imposed upon him, the same
could not have been inflicted without
following the procedure prescribed under
the Rules aforementioned and holding of
a detailed oral inquiry.
1 All] Gajendra Prasad Saxena Vs. Statge of U.P. & Ors.
313
8. Learned counsel for the petitioner
has submitted with reference to the
pleadings taken in the writ petition and
the inquiry report submitted in this regard
to contend that the inquiry proceedings
were
taken
ex-parte
and
that
the
impugned order is liable to be quashed
consequently.
9. Learned Standing Counsel has on
the other hand submitted that grave and
serious charges had been levelled against
the petitioner including those of having
caused loss to the Department. He has
submitted that the Inquiry Officer has
recorded cogent grounds and has taken
into consideration evidence existing on
record while recording his conclusion that
Charge Nos.1, 2, 3, 7 and 8 stood proved
against him. He has further drawn the
attention of the Court to the fact that
insofar as Charge Nos. 4 and 9 are
concerned, the same were found to have
been partly proved and Charge Nos.5 and
6 were not found proved against the
petitioner.
10. It is the admitted case of parties
that the provisions of Rules, 1999 referred
to hereinabove govern the proceedings
taken against the petitioner. In order to
appreciate the rival contentions canvassed
before this Court, it would be apposite to
refer to the following relevant provisions
of the aforesaid rules.
"3.
Penalties.-The
following
penalties may, for good and sufficient
reason and as hereinafter provided, be
imposed upon the Government Servants:-
Minor Penalties:-
(i) Censure;
(ii) Withholding of increments for a
specified period;
(iii) Stoppage at an efficiency bar;
(iv) Recovery from pay of the whole
or part of any pecuniary loss caused to
Government by negligence or breach of
orders.
(v) Fine in case of persons holding
Group 'D' posts:
Provided that the amount of such fine
shall in no case exceed twenty-five per
cent of the months pay in which the fine is
imposed.
Major Penalties:-
(i) Withholding of increments with
cumulative effect;
(ii) Reduction to a lower post or
grade or time-scale or to a lower stage in
a time scale;
(iii) Removal from the service which
does
not
disqualify
from
future
employment;
(iv) Dismissal from service which
disqualifies from future employment.
Explanation.- The following shall not
amount to penalty within the meaning of
this rule, namely:-
(i) Withholding of increment of a
Government Servant for failure to pass a
Departmental examination or for failure
to fulfil any other condition in accordance
with the rules or orders governing the
service;
(ii) Stoppage at the efficiency bar in
the time scale of pay on account of ones
not being found fit to cross the efficiency
bar;
(iii) Reversion of a person appointed
on probation to the service during or at
the end of the perioid of probation in
accordance with the terms of appointment
or the rules and orders governing such
probation;
(iv) Termination of the service of a
person appointed on probation during or
at the end of the period of probation in
accordance with the terms of the service
314
 INDIAN LAW REPORTS ALLAHABAD SERIES
or the rules and orders governing such
probation.
7. Procedure for imposing major
penalties.-Before imposing any major
penalty on a Government servant, an
inquiry shall be held in the following
manner:
(i)The Disciplinary Authority may
himself inquire into the charges or
appoint an authority subordinate to him
as Inquiry Officer to inquire into the
charges.
(ii)The
facts
constituting
the
misconduct on which it is proposed to
take actioin shall be reduced in the form
of definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the Disciplinary authority:
Provided that where the Appointing
Authority is Governor, the charge-sheet
may be approved by the Principal
Secretary or the Secretary, as the case
may be, of the concerned Department.
(iii) The charges framed shall be so
precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidences and the name of witnesses
proposed to prove the same along with
oral evidences, if any, shall be mentioned
in the charge-sheet.
(iv)
The
Charged
Government
servant shall be required to put in a
written statement of his defence in person
on a specified date which shall not be less
than 15 days from the date of issue of
charge-sheet and to state whether he
desires to cross-examine any witness
mentioned in the charge-sheet and
whether desires to give or produce
evidence in his defence. He shall also be
informed that in case he does not appear
or file the written statement on the
specified date, it will be presumed that he
has none to furnish and inquiry officer
shall proceed to complete the inquiry ex
parte.
(v) The charge-sheet, along with the
copy of documentary evidences mentioned
therein and list of witnesses and their
statements, if any shall be served on the
charged Government servant personally
or by registered post at the address
mentioned in the offical records in case
the charge-sheet could not be served in
aforesaid manner, the charge-sheet shall
be served by publication in a daily
newspaper having wide calculation:
Provided
that
where
the
documentary evidence is voluminous,
instead of furnishing its copy with chargesheet, the charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.
(vi)Where the charged Government
servant appears and admits the charges,
the Inquiry Officer shall submit his report
to the Disciplinary Authority on the basis
of such admission.
(vii) Where the charged Government
servant denies the charges the Inquiry
Officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in presence of the
charged-Government servant who shall
be given opportunity to cross-examine
such witnesses. After recording the
aforesaid evidences, the Inquiry Officer
shall call and record the oral evidence
which the charged Government servant
record desired in his written statement to
be produced in his defence:
Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.
(viii) The Inquiry Officer may
summon any witness to give evidence or
require any person to produce documents
before him in accordance with the
1 All] Gajendra Prasad Saxena Vs. Statge of U.P. & Ors.
315
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of witnesses and Production
of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any
question he pleases, at any time of any
witness or from person charged with a
view to discover the truth or to obtain
proper proof of facts relevant to charges.
(x)Where the charged Government
servant does not appear on the date fixed
in the inquiry or at any stage of the
proceeding in spite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer shall proceed
with the inquiry ex parte. In such a case,
the Inquiry Officer shall record the
statement of witnesses mentioned in the
charge-sheet in absence of the charged
Government servant.
(xi)The Disciplinary Authority, if it
considers it necessary to do so, may, by
an order appoint a Government servant
or a legal pactitioner, to be known as
"Presenting Officer" to present on its
behalf the case in suppot of the charge.
(xii)The Government servant may
take
the
assistance
of
any
other
Government servant to present the case
on his behalf but not engage a legal
practitioner for the purpose unless the
presenting officer appointed by the
Disciplinary
Authority
is
a
legal
pactitioiner of the Disciplinary Authority
having regard to the circumstances of the
case so permits:
Provided that this rule shall not
apply in following cases:-
(i) Where any major penalty is
imposed on a person on the ground of
conduct which has led to his conviction
on a criminal charge; or
(ii) Where the Disciplinary Authority
is satisfied, that for reason to be recorded
by it in writing, that it is not reasonably
practicable to held an inquiry in the
manner provided in these rules; or
(iii) Where the Governor is satisfied
that, in the interest of the security of the
State, it is not expedient to hold an
inquiry in the manner provided in these
rules.
10. Procedure for imposing minor
penalties.-(1) Where the Disciplinary
Authority is satisfied that good and
sufficient reasons exist for adopting such
a course, it may, subject to the provisions
of sub-rule (2) impose one or more of the
minor penalties mentioned in Rule 3.
(2) The Government servant shall be
informed
of
the
substance
of
the
imputations againt him and called upon to
submit
his
explanation
within
a
reasonable
time.
The
Disciplinary
Authority shall, after considering the said
explanation, if any, and the relevant
records, pass such orders as he considers
proper and where a penalty is imposed,
reasons thereof shall be given. The order
shall be communicated to the concerned
Government servant."
11. The Inquiry Officer in terms of
his report and as noticed above found that
Charge Nos.1, 2, 3, 7, and 8 stood fully
proved, Charge Nos. 4 and 9 were found
partly proved and Charge Nos. 5 and 6
were found to be not proved against the
petitioner. This report was accepted by
the
Disciplinary
Authority
and
the
petitioner
was
also
provided
an
opportunity to submit his representation
against the same. The order of the
Disciplinary
Authority
records
that
despite
the
said
opportunity
being
afforded to the petitioner he submitted no
reply. It was in the above background that
the Disciplinary Authority proceeded to
inflict upon the petitioner the four
punishments enumerated hereinabove. It
316
 INDIAN LAW REPORTS ALLAHABAD SERIES
becomes relevant to note here that the
charge on the petitioner having caused
loss to the extent of Rs.4,12,789.68/-stood
comprised in Charge No.1. Similarly, the
charge of withdrawal of Rs. 59927/- from
the G.P.F. was also found proved against
the petitioner.
12. This Court finds that the
punishment (a), (b) and (d) are liable to be
classified
as
minor
penalties.
The
recovery
of
loss
caused
to
the
Government by negligence or breach of
orders from the pay and other dues of the
employee is clearly classified as a minor
penalty. Insofar the imposition of minor
penalties are concerned they are governed
by the provisions of Rule 10. This Rule
does not envisage the appointment of any
Inquiry
Officer
or
the
Department
instituting
regular
disciplinary
proceedings as envisaged and provided
for in Rule 7. The only requirement that
Rule 10 places upon the Disciplinary
Authority is that he would inform the
Government servant of the substance of
the charges against him and call for his
explanation. The Disciplinary Authority
thereafter considering the said explanation
and the relevant records may proceed to
impose the penalties described as minor
penalties under Rule 3.
13. The only major penalty which
has been inflicted upon the petitioner is
that of withholding of one increment with
cumulative effect. The provisions and
procedures laid down in Rule 7 were
liable to be followed in respect of the
imposition of this penalty alone.
14. There is no dispute with the
basic proposition advanced by Shri
Adarsh Bhushan, learned counsel for the
petitioner that before imposition of a
major punishment an oral inquiry must
necessarily be held. Shri Adarsh Bhushan
has in this connection relied upon a
judgment rendered by a learned Single
Judge of this Court in Writ Petition No.
10637 of 2007, Shiv Prasad Ram Vs.
State of U.P. & Ors, decided on
25/11/2010. For our purposes, it would be
relvant to notice what the learned Single
Judge held in the above matter. The
relevant extracts whereof read as under:
"4. A Division Bench of this Court in
Subhash Chandra Sharma Vs. Managing
Director
&
another,
2000
(1)
U.P.L.B.E.C.
541,
considering
the
question as to whether holding of an oral
inquiry is necessary or not, held that if no
oral inquiry is held, it amounts to denial
of principles of natural justice to the
delinquent employee. The aforesaid view
was reiterated in Subhash Chandra
Sharma Vs. U.P. Cooperative Spinning
Mills & others, 2001 (2) UPLBEC 1475
and Laturi Singh Vs. U.P. Public Service
Tribunal & others, Writ Petition No.
12939 of 2001, decided on 06.05.2005.
5.An oral inquiry would be necessary
even if the delinquent employee has failed
to submit reply to the charge sheet. In
State of U.P. & another Vs. T.P. Lal
Srivastava, 1997 (1) LLJ 831, the Hon'ble
Apex Court held that even if the employee
has failed to submit reply to the charge
sheet, it would not absolve the Inquiry
Officer from proceeding with the oral
inquiry and submit report as to whether
charge is proved or not. After recording
of evidence, he will find out whether the
charge is proved or not and submit report
to
the
disciplinary
authority.
The
aforesaid exposition of law makes it clear
that the delinquent employee has a right
to defend himself at different stages.
When the charge sheet is served upon
1 All] Gajendra Prasad Saxena Vs. Statge of U.P. & Ors.
317
him, he has a right to submit his reply and
in case he does not submit reply, that
itself would not amount to admission of
guilt or that the charge stand proved. If
the allegations are serious and may result
in
major
penalty,
the
disciplinary
authority may appoint Inquiry Officer.
Such Inquiry Officer, thereafter would
have to fix a date for oral evidence. At
this stage the delinquent employee has a
right to participate in the oral inquiry,
examine witnesses, if produced by the
Department, and after the evidence of the
Department is completed, the delinquent
employee may produce evidence in his
defence. During the course of oral
inquiry, the delinquent employee has right
to participate at every stage and date and
if there is any failure in participation on
one or more occasions, the Inquiry
Officer cannot deny him participation
from the subsequent stage. The delinquent
employee can participate at subsequent
other stage also. The Inquiry Officer,
after completion of oral inquiry, will
submit its report after discussing the
entire material and if any charge is
proved, the disciplinary authority shall
supply a copy of the inquiry report to the
delinquent employee and he would again
have a right to submit reply to the inquiry
report.
6.Non holding of oral inquiry,
therefore, is a serious flaw which vitiates
the
entire
disciplinary
proceeding,
including the order of punishment."
15. This Court does not dispute the
proposition advanced by Shri Adarsh
Bhushan, nor does it disagree with what
was recorded by the learned Single Judge
in the judgment aforementioned. If the
Department felt that a major punishment
was liable to be imposed upon the
petitioner it was obliged and mandated to
follow the procedure prescribed in Rule 7.
This ordinarily would have set the
controvery to rest. The Court, however, is
further obliged to consider the question as
to whether the non-following of the
procedure prescribed under Rule 7 would
also invalidate the imposition of minor
penalties. Or to put it differently, will the
impugned order fall in entirety on account
of this flaw in the procedure adopted by
the Respondents?
16. In the opinion of this Court,
minor penalties were not liable to be
inflicted after following the procedure
prescribed under Rule 7. The procedure of
a detailed oral inquiry was liable to be
followed only in respect of the imposition
of the punishment of stoppage of one
increment with cumulative effect. The
learned counsel for the petitioner has not
advanced any submissions touching upon
the merits of the charges levelled against
him nor has it been contended before this
Court that the findings returned by the
Inquiry Officer in respect of the charges
found proved against him were arbitrary
and unsustainable. In fact as noticed
above, the sole submission canvassed by
Sri Bhushan was the failure of the
Respondents to hold an oral enquiry
which was mandated for imposition of a
major penalty.
17. This Court has gone through the
inquiry report and finds that the Inquiry
Officer has duly applied his mind to the
charges levelled and on the basis of the
evidence
before
him
recorded
his
conclusions with respect to Charge Nos.1,
2, 3, 7 and 8.
18. The question therefore is
whether the order impugned is to be
quashed in entirety or whether the
doctrine of "partial quashing" is to be
318
 INDIAN LAW REPORTS ALLAHABAD SERIES
applied in the facts and circumstances of
the case. In other words this Court would
have
to
consider
whether
the
objectionable part of the order is
severable from the valid.
19.

The
principle
of
an
unconstitutional provision of a statute
being severed and struck down leaving
other parts untouched is well known. The
said principle of severability has been
extended to orders also. This is how the
above position was explained by the
Constitution Bench of the Apex Court in
Y. Mahboob Sheriff and Sons Vs. Mysore
State Transport Authority AIR 1960 SC
321.
"(10a) This brings us to the question
of relief to be granted to the petitioners. It
is contended on behalf of the Department
that all that this Court can do is to quash
the order of December 15, 1958, and send
the case back to the Authority for
consideration of the question of renewal
afresh. On the other hand, the petitioners
contend that this Court should quash the
illegal condition limiting the duration of
the renewal to one year and direct the
Authority to specify a period of not less
than three years and not more than five
years in conformity with Section 58(1)(a)
in the order of renewal. This raises the
question of severability of a part of the
order passed by the Authority. The
principles on which any unconstitutional
provision can be severed and struck down
leaving other parts of a statute untouched
were laid down by this Court in R.M.D..
Chamarbaugwalla v. The Union of India,
1957, S.C.R. 930:((S) AIR 1957 SC 628)
and the first principle is whether the
legislature would have enacted the valid
part if it had known that the rest of the
statute was invalid. This principle relating
to statutes was extended by this Court to
orders in Shewpujanrai Indrasanrai Ltd.
v. The Collector of Customs, 1959 SCR
821; (AIR 1958 SC 845), where a part of
the order of the Collector of Customs was
quashed. The question therefore resolves
into this: would the Authority have ordered
renewal if it knew that it could not reduce
the period of a permit to below three years
? Looking at the facts of these cases which
we have set out earlier, it is to our mind
obvious that the Authority would have
granted renewal in the circumstances of
these cases when it did so in December
1958. The previous permits in these cases
had expired on March 31, 1958, and the
petitioners had been plying their stage
carriages right up to the time when the
order was passed on December 15, 1958;
they could not do so without a permit in
view of S. 42 of the Act. Therefore, renewal
in these cases was certain when the order
was passed on December 15, 1958. In the
circumstances it is open to us to sever the
illegal part of the order from the part which
is legal, namely, the grant of the renewal."
20. Following the principle laid
down above, the doctrine of severability
was applied to an order of dismissal with
retrospective effect by the Apex Court in
R. Jeevaratnam Vs. State of Madras AIR
1966 SC 951 in the following manner:-
"4. The order dated October 17,
1950 directed that the appellant be
dismissedfrom service with effect from the
date of his suspension, that is to say, from
May 20, 1949. In substance, this order
directed that (1) the appellant be
dismissed, and (2) the dismissal do
operate retrospectively as from May 20,
1949. The two parts of this composite
order are separable. The first part of the
order operates as a dismissal of the
1 All] Gajendra Prasad Saxena Vs. Statge of U.P. & Ors.
319
appellant as from October 17, 1950. The
invalidity of the second part of the order,
assuming this part to be invalid, does not
affect the first part of the order. The order
of dismissal as from October 17, 1950 is
valid and effective. The appellant has
been lawfully dismissed, and he is not
entitled to claim that he is still in service".
21. The above position in law as
struck by the Hon'ble Supreme Court was
reiterated again in State Bank of Patiala
Vs. Ram Niwas Bansal (2014) 12 SCC
106 in the following words:-
"15. Regard being had to the nature
of controversy, we shall proceed to deal
with the first point first, that is, whether
the order of removal could have been
made
with
retrospective
effect.
Mr
Patwalia,
learned
Senior
Counsel
appearing
for
the
employee,
has
submitted that the disciplinary authority
could not have passed an order of
removal by making it operational from a
retrospective date. He has commended us
to a three-Judge Bench decision in R.
Jeevaratnam v. State of Madras [R.
Jeevaratnam v. State of Madras, AIR
1966 SC 951] . In the said case, the
appellant therein instituted a suit for a
declaration that the order of dismissal
from service was illegal and void. The
trial court dismissed the suit and the said
decree was affirmed in appeal by the
High Court. One of the contentions raised
before this Court was that the order of
dismissal dated 17-10-1950 having been
passed with retrospective effect i.e. 29-51949, was illegal and inoperative. This
Court opined that an order of dismissal
with retrospective effect is, in substance,
an order of dismissal as from the date of
the order with the superadded direction
that
the
order
should
operate
retrospectively as from an anterior date.
The two parts of the order are clearly
severable. Assuming that the second part
of the order is invalid, there is no reason
why the first part of the order should not
be given the fullest effect. The said
principle has been followed in Gujarat
Mineral Development Corpn. v. P.H.
Brahmbhatt [(1974) 3 SCC 601 : 1974
SCC (L&S) 102]."
22. One may in this connection also
usefully refer to the enunciation of the
principle of severability as laid down by
the Apex Court in State of Mysore Vs. K.
Chandrasekhara Adiga (1976) 2 SCC 495.
"27. The only question that remains
to be considered is, whether the High
Court should have quashed the order of
assignment in toto or only the illegal part
of it. This question depends on the
exigencies of each case because this
Court is not fettered in the exercise of its
discretion by the technical rules relating
to the issue of writs by the English courts.
The first point to be considered in the
context of making an appropriate order or
direction in such cases is whether the
valid and the invalid portions of the order
are severable, and if so, whether after
excision of the invalid part, the rest
remains viable and self-contained. In the
instant case the illegal condition in the
order of assignment is not an integral
part of the assignment, in the sense, that
its deletion cannot render the rest which
has been found to be valid, truncated and
ineffective."
23. This Court is of the opinion that
in light of what was found by the Enquiry
Officer on the evidence and material
before it, the Disciplinary Authority
would have been fully justified in
320
 INDIAN LAW REPORTS ALLAHABAD SERIES
imposing the minor penalties finding
mention in the impugned order. In
situations like these the Court is also
mindfull of what the Apex Court held in
State
of
Orissa
Vs.
Bidyabhushan
Mohapatra AIR 1963 SC 779-
"9. ........The recommendation of the
Tribunal was undoubtedly founded on its
findings on Charges 1(a), 1(c ), 1(d) and
Charge (2). The High Court was of the
opinion that the findings on two of the heads
under Charge (1) could not be sustained
because in arriving at the findings the
Tribunal had violated rules of natural
justice.............Therefore if the order may be
supported on any finding as to substantial
misdemeanour for which the punishment can
lawfully be imposed, it is not for the Court to
consider whether that ground alone would
have weighed with the authority in
dismissing the public servant........."
24. In the opinion of the Court,
therefore,
the
imugned
order
of
punishment is clearly severable. The part
of the impugned order insofar as it
imposes
minor
penalties
upon
the
petitioner cannot be upset or set-aside by
this Court either in exercise of its powers
of judicial review or on the basis of the
submissions advanced by the learned
counsel for the petitioner.
25. In a position of this nature, this
Court exercising powers under Article
226 of the Constitution of India can very
well proceed to partially quash an order if
it finds that the invalidity can be
earmarked and separated/excised from the
otherwise valid part of the order assailed
before it. In the facts of the present case,
this Court finds that the invalidity by
which the impugned order suffers pertains
only to the imposition of major penalties.
The said part of the order is severable and
it is to that extent alone that this Court
feels compelled to interfere. It is the
undisputed position that under the Rules,
1999 insofar as the power of imposition
of minor penalties is concerned, the same
was not liable to be preceded by an oral
enquiry. The Rules, 1999 only mandated
that the authority would elicit an
explanation from the concerned employee
and proceed to pass orders after taking the
same into consideration. The authority,
therefore, would have been fully justified
in making the order impugned on the
basis of the response submitted by the
Petitioner and the material before him.
This Court is further convinced in arriving
at the above conclusion in light of the fact
that the findings recorded by the Enquiry
Officer and the Disciplinary Authority
have not been assailed on merits before
this Court and the submissions have been
confined to the infraction of Rule 7 of the
Rules, 1999 and the principles of natural
justice.
26.
Accordingly, and in view of the
above, this writ petition is partly allowed.
The impugned order insofar as it imposes
punishment of stoppage of one increment
with cumulative effect is hereby quashed.
Consequential reliefs, if any, which are
liable to flow to the petitioner shall be
considered by the respondents in light of
what is recorded by this Court hereinabove.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 22901 of 2011
Kashi Nath Upadhyay
...Petitioner