# Gaya Prasad Yadav v. State of U.P. and another

- **Citation:** (2007) 2 ILRA 523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-04-18
- **Case number:** Civil Misc. Writ Petition No. 51163 of 2002
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-yadav-v-state-of-u-p-and-another-40957
- **Pages:** 4

## Headnote

Constitution of India-Dismissal orderPetitioner working as Accountant in
Treasury-for certain wrong payment-FIR
lodged against 7 persons-criminal Court
identified four person-but three persons
including
petitioner
not
identified-in
departmental proceeding punishment of
dismissal with recovery of Rs.1,54,481/-
while first charge regarding empossing
seal of competent authority on pension
paper-the
disbursing
authority
is
responsible-second charge signature by
sketch pen-being ink pen-can not be
held guilty-dismissal order held illegal.

Held: Para 8

With regard to the first charge, once the
pension papers produced were having
Embossed Seal of the Competent Officer,
it could not be said that there was any
fault of the petitioner, specially when the
responsibility for payment of pension
was that of Pension Disbursing Officer
and not the petitioner. As regard the
second charge, the signature had been
made by sketch pen which is also an ink
pen. In the absence of the Rule providing
for any specific pen to be used for the
signature, the petitioner cannot be held
guilty of the charge. The third charge, as
stated above, has been partly proved
against the petitioner, merely because
the petitioner was assisting the Pension
Disbursing Officer. The petitioner could
not be held responsible for any act of
some
other
officer
responsible
for
performance of such duty under law. In
such
circumstances
at
best,
the
petitioner could have been warned for
his conduct as a person who assisted the
Pension Disbursing Officer, but he could
not be held responsible for acts or
performance
of
duty
specifically
assigned
to the Pension Disbursing
Officer. As such, none of the three
charges could be said to have been
proved against the petitioner so as to
warrant any punishment. Even the order
directing recovery from the petitioner
has been wrongly made, as admittedly it
was the responsibility of the Pension
Disbursing Officer to make such payment
and not that of the petitioner. If at all,
recovery could have been made from to
officer concerned and not from the
person who assisted such officer. In its
order, the appellate authority has also
observed that the petitioner was having
38
years
of
service
career
with
unblemished record and still awarded
such
punishment
of
reversion
and
recovery, without the petitioner being
found responsible for such acts, which is
wholly
unjustified
and
cannot
be
sustained in the eyes of law.

## Text

2 All] Gaya Prasad Yadav V. State of U.P. and another
523
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 51163 of 2002

Gaya Prasad Yadav

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

Counsel for the Petitioner:
Sri Manu Khare

Counsel for the Respondents:
S.C.

Constitution of India-Dismissal orderPetitioner working as Accountant in
Treasury-for certain wrong payment-FIR
lodged against 7 persons-criminal Court
identified four person-but three persons
including
petitioner
not
identified-in
departmental proceeding punishment of
dismissal with recovery of Rs.1,54,481/-
while first charge regarding empossing
seal of competent authority on pension
paper-the
disbursing
authority
is
responsible-second charge signature by
sketch pen-being ink pen-can not be
held guilty-dismissal order held illegal.

Held: Para 8

With regard to the first charge, once the
pension papers produced were having
Embossed Seal of the Competent Officer,
it could not be said that there was any
fault of the petitioner, specially when the
responsibility for payment of pension
was that of Pension Disbursing Officer
and not the petitioner. As regard the
second charge, the signature had been
made by sketch pen which is also an ink
pen. In the absence of the Rule providing
for any specific pen to be used for the
signature, the petitioner cannot be held
guilty of the charge. The third charge, as
stated above, has been partly proved
against the petitioner, merely because
the petitioner was assisting the Pension
Disbursing Officer. The petitioner could
not be held responsible for any act of
some
other
officer
responsible
for
performance of such duty under law. In
such
circumstances
at
best,
the
petitioner could have been warned for
his conduct as a person who assisted the
Pension Disbursing Officer, but he could
not be held responsible for acts or
performance
of
duty
specifically
assigned
to the Pension Disbursing
Officer. As such, none of the three
charges could be said to have been
proved against the petitioner so as to
warrant any punishment. Even the order
directing recovery from the petitioner
has been wrongly made, as admittedly it
was the responsibility of the Pension
Disbursing Officer to make such payment
and not that of the petitioner. If at all,
recovery could have been made from to
officer concerned and not from the
person who assisted such officer. In its
order, the appellate authority has also
observed that the petitioner was having
38
years
of
service
career
with
unblemished record and still awarded
such
punishment
of
reversion
and
recovery, without the petitioner being
found responsible for such acts, which is
wholly
unjustified
and
cannot
be
sustained in the eyes of law.

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner was Accountant in
the Agra Treasury. For some instance of
wrong payment made in the year 1990, an
F.I.R. was lodged against seven persons,
which did not include the name of the
petitioner.
However,
departmental
enquiry
was
initiated
against
the
petitioner, in which chargesheet was
submitted on 26.8.1992, to which the
petitioner submitted his reply. However,
in the meantime, in the criminal case, out
of seven persons named, four persons
were found to be guilty of offences and
524 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
were identified. However, the remaining
three persons could not be identified. The
same
was
communicated
by
the
Economics Offences Wing, U.P. to the
State Government vide communication
dated
26.12.1996,
wherein
it
was
mentioned
that
the
departmental
proceeding may be initiated against some
official
of
treasury,
including
the
petitioner.

2. After submission of the charge
sheet and reply given by the petitioner in
the
departmental
proceedings
on
26.8.1992,
an
enquiry
report
was
submitted
only
on
15.9.2000
and
thereafter vide order 24.5.2002 passed by
the
District
Magistrate,
Agra
the
punishment of dismissal of service and
recovery of Rs.1,54,481/- was directed to
be made from the petitioner. Challenging
the said order, the petitioner filed an
appeal which was decided by the
Commissioner, Agra Division, Agra on
23.10.2002 whereby the punishment of
dismissal was reduced to that of reversion
to the next lower grade in the pay scale of
Rs.4000-6000 but the same was also
subject to the condition that the petitioner
deposited the sum of Rs.1,54,481/-. It was
further directed that the petitioner would
not be entitled to salary during the period
he remained out of service. Aggrieved by
the aforesaid orders dated 24.5.2002 and
23.10.2002 the petitioner has filed this
writ petition.

3. By a detailed interim order dated
2.12.2002, the operation of the aforesaid
orders dated 24.5.2002 and 23.10.2002,
insofar as they direct the petitioner to
deposit Rs.1,54,481/- had been stayed.
Consequently,
the
petitioner
was
permitted to join on the reverted post in
the pay scale of Rs.4000/6000. During the
pendency of this writ petition, the
petitioner has retired from service on
31.1.2004.

4. I have heard Sri Manu Khare,
learned counsel for the petitioner as well
as learned Standing Counsel appearing for
the respondents and have perused the
record.

The submission of learned counsel
for the petitioner is that even in the
enquiry report the three charges against
the petitioner had only been said to be
proved partly but still the impugned order
punishing the petitioner has been passed.
It has further been submitted that the
petitioner was not the person responsible
for payment of pension and it was the
Pension Disbursing Officer who was
responsible for the same. It has thus been
urged that order of reversion as well the
order directing the recovery from the
petitioner is wholly unjustified and liable
to be quashed. It has also been submitted
that as per the instructions issued by the
Controller
of
Defence
Accounts
(Pensions) Government of India regarding
payment of pension, in para 10 it has been
provided that Pension Disbursing Officers
are to be personally responsible for the
acts of their subordinates and Government
will hold them responsible for any loss
which may result from their own
supineness or the dishonesty of their
subordinates. As such, the contention is
that the petitioner, who was only an
Accountant, could not be held responsible
for any such wrong payment of pension.

5. Learned Standing Counsel has,
however, submitted that since the charges
have been partly proved against the
petitioner, the punishment imposed by the
2 All] Gaya Prasad Yadav V. State of U.P. and another
525
appellate authority is fully justified and
liable to be confirmed.

6. The summary of three charges
levelled against the petitioner are that; (i)
the payment of pension was made on a
photocopy of the Pension Payment Order
and not the original; (ii) the signature of
the pensioner was made by the sketch pen
and not by ink pen, and even then pension
was accepted by the petitioner; and (iii)
the pensioner was not properly identified
by two witnesses.

7. With regard to the first charge,
even though the finding recorded by the
enquiry officer is to the effect that the
photocopy of the Pension Payment Order
bore the duly Embossed Seal of the
Competent Officer and that it was the
duty of Pension Disbursing Officer to see
the correctness of the documents and not
that of the accountant or clerk, but still the
enquiry officer held the charge against the
petitioner to be partly proved. As regards
the second charge, even though the
enquiry officer admitted that the provision
of signature of the pensioner was to be
made by the ink pen and that sketch pen
was also an ink pen, but in the end the
enquiry officer stated that the said charge
was also partly proved. With regard to
third charge, relating to identification by
two witnesses, the enquiry officer has
stated that although there was no
provision under the Rules for such
identification, but as per practice, it was
being done for first payment. It was
admitted by the enquiry officer that
despite
no
such
requirement,
the
identification had been done by two
existing pensioners but it was then stated
that had the accountant and the Pension
Disbursing Officer made enquiries from
those identifying, then false payment
could have been avoided. In the end, the
enquiry officer has also mentioned that it
is true that the responsibility of making
such payment was of the Pension
Disbursing Officer but since the petitioner
was to assist the Pension Disbursing
Officer, he would also be responsible and
thus this charge was said to be partly
proved against the petitioner.

8. With regard to the first charge,
once the pension papers produced were
having Embossed Seal of the Competent
Officer, it could not be said that there was
any fault of the petitioner, specially when
the responsibility for payment of pension
was that of Pension Disbursing Officer
and not the petitioner. As regard the
second charge, the signature had been
made by sketch pen which is also an ink
pen. In the absence of the Rule providing
for any specific pen to be used for the
signature, the petitioner cannot be held
guilty of the charge. The third charge, as
stated above, has been partly proved
against the petitioner, merely because the
petitioner was assisting the Pension
Disbursing Officer. The petitioner could
not be held responsible for any act of
some
other
officer
responsible
for
performance of such duty under law. In
such circumstances at best, the petitioner
could have been warned for his conduct
as a person who assisted the Pension
Disbursing Officer, but he could not be
held responsible for acts or performance
of duty specifically assigned to the
Pension Disbursing Officer. As such,
none of the three charges could be said to
have been proved against the petitioner so
as to warrant any punishment. Even the
order
directing
recovery
from
the
petitioner has been wrongly made, as
admittedly it was the responsibility of the
Pension Disbursing Officer to make such
526 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
payment and not that of the petitioner. If
at all, recovery could have been made
from to officer concerned and not from
the person who assisted such officer. In its
order, the appellate authority has also
observed that the petitioner was having 38
years of service career with unblemished
record and still awarded such punishment
of reversion and recovery, without the
petitioner being found responsible for
such acts, which is wholly unjustified and
cannot be sustained in the eyes of law.

9. For the foregoing reasons, the
order impugned orders in this writ petition
deserve to be quashed.

10. Accordingly, this writ petition
stands allowed. The impugned orders
24.5.2002 and 23.10.2002 passed by the
District Magistrate, Agra, respondent no.1
and Commissioner, Agra Division Agra,
respondent
no.2
are
quashed.
The
petitioner
shall
be
entitled
to
all
consequential benefits. No order as to
cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 46474

Tufail Ahmad and others ...Petitioners
Versus
The Chairman/Director, Gas Authority of
India and another ...Respondents

Counsel for the Petitioners:
Sri Manoj Kumar Sharma
Sri Rajeev Trivedi

Counsel for the Respondents:
Sri Siddharth Singh
Sri D.P. Singh
Sri K.N. Pandey

Constitution
of
India,
Art.
226Regularisation-petitioners
working
on
different
status
with
registered
contractor-which provides services to
the Gas Authority of India-who under
takes work of HUAC System, Split and
window Air conditioning water cooler
etc.-never worked as employee of GAILheld-'No' mandamus can be issued to
private contractor.

Held: Para 17 & 18

The petitioners are not the employees of
Gas Authority of India, as such, have not
worked as employees of GAIL for more
than 240 days continuously.

So far as regularization of their service is
concerned the petitioners are permanent
employees
of
Contractor
Company,
hence, no writ of mandamus can be
issued to a private Contractor and even
otherwise, in view of decision of Hon'ble
Apex Court in State of Punjab and
another V. Sardara Singh 1998 (9) SCC709 holding that relief of regularization
in service cannot be granted by High
Court
in
exercise
of
extraordinary
powers
under
Article
226
of
the
Constitution,
Case law discussed:
1999 (3) J.T.-277
1998 (9) SCC-709

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

1. Heard counsels for the parties and
perused the record.

2. The petitioners are permanent
employees of Advance Air Conditioning
Works (Pvt.) Ltd., Kanur (hereinafter
referred to as 'the Contractor Company'),
a
company
registered
under
the
Companies
Act,
1956
which
has
undertaken work of maintenance of