# Gulam & Ors v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-12
- **Case number:** Civil Misc. Writ Petition No. 18653 of 2012
- **Bench:** Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulam-ors-v-state-of-u-p-ors-42912
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Service lawpension and compassionate appointmentclaim rejected-on ground as service were
dismissed-neither
pension
nor
compassionate appointment payable-heldenquiry report submitted on 03.07.2011employee died on 15.07.2011-in absence of
relationship of employer and employeedismissal could be inflicted on 21.11.11order quashed-entitled for pension as well
as compassionate appointment.

Held: Para-10
There is another aspect of the matter. In
the present case Abdul Kareem expired
on 15.7.2011, i.e. before the disciplinary
authority could pass any order on the
enquiry report dated 3.7.2011. In the
circumstances therefore, the master and
706 INDIAN LAW REPORTS ALLAHABAD SERIES
servant relationship between Late Abdul
Kareem and the respondents also came
to an end with his death and therefore,
the impugned order dated 21.11.2011
could not have been passed after the
death of Abdul Kareem.

## Text

2 All] Gulam & Ors. Vs. State U.P. & Ors.
705
been placed on record to show that any
effective steps were taken by authority
concerned to ensure that petitioner is
posted in a place where he may join and
work. Instead respondents have sought to
rely on a letter to which it has not been
shown, when the same was served upon
the petitioner, as already discussed above.

55. In view thereof, it cannot be said
that petitioner on is own denied to discharge
duties. Instead it is the respondents own
illegal act by transferring and posting
petitioner at a place where there was no
vacancy so as to deny him any occasion to
render any service. For that purpose, the loss,
if any, must be suffered by State, may be
recovered from officer(s) concerned but
petitioner cannot be made to suffer by
denying him salary for no fault on his part.

56. In taking the above view, I find
myself supported by two Division Bench
judgment of this Court in Ram Narain
Singh Vs. State of U.P. & Ors, 2007 (4)
AWC 3382 (All) and Brijendra Pakash
Kulshrestha Vs. Director of Education,
2007(3) ADJ 1 (in which I was also a
member).

57. In the result, the writ petition is
allowed. The impugned order dated
10.10.2007 (Annexure 18 to the writ
petition) passed by respondent no.2 is
hereby quashed. The respondents are
directed to pay entire salary to petitioner
for the period, denied to him, for no fault
on his part i.e. from July, 2004 to
29.01.2006. However, it shall be open to
respondent no.1 to recover the aforesaid
amount from officer(s) concerned, who
made a mechanical transfer and posting of
petitioner at a place where there was no
vacancy, on account whereof, he was not
allowed to function, after making such
enquiry as permissible in law.

58. The petitioner shall also be
entitled to cost, which I quantify to
Rs.10,000/-.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2014

BEFORE
THE HON'BLE AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 18653 of 2012

Gulam & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Santosh Kumar
Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service lawpension and compassionate appointmentclaim rejected-on ground as service were
dismissed-neither
pension
nor
compassionate appointment payable-heldenquiry report submitted on 03.07.2011employee died on 15.07.2011-in absence of
relationship of employer and employeedismissal could be inflicted on 21.11.11order quashed-entitled for pension as well
as compassionate appointment.

Held: Para-10
There is another aspect of the matter. In
the present case Abdul Kareem expired
on 15.7.2011, i.e. before the disciplinary
authority could pass any order on the
enquiry report dated 3.7.2011. In the
circumstances therefore, the master and
706 INDIAN LAW REPORTS ALLAHABAD SERIES
servant relationship between Late Abdul
Kareem and the respondents also came
to an end with his death and therefore,
the impugned order dated 21.11.2011
could not have been passed after the
death of Abdul Kareem.

(Delivered by Hon'ble Amit Sthalekar, J.)

1. The petitioner in this writ petition
is
aggrieved
by
the
order
dated
21.11.2011 whereby the retiral and other
dues of late Abdul Kareem, father of
petitioner no. 1 have been with held and
the order dated 1.3.2012 whereby the
claim for compassionate appointment
made by the petitioner no. 1 has been
rejected.

2. The case of the respondents is that
late Abdul Kareem obtained appointment
in the Revenue Department as Lekhpal
and he was sent for training of Lekhpal
but thereafter it was alleged that the
petitioner alongwith some other persons
had
obtained
the
appointment
by
concealment of facts and practicing fraud,
therefore their services were terminated
under the U.P. Temporary Government
Service (Termination of Service) Rules,
1975. This order was challenged by the
petitioner alongwith others in Writ
Petition No. 1131 (S/S) of 1994 in which
late Abdul Kareem was petitioner no. 4
and the writ petition was allowed on the
ground that the services of the petitioner
could be terminated after giving notice
and after following the principles of
natural justice. Against the judgment of
the High Court dated 16.2.2000 a Special
Appeal was filed which was dismissed on
8.10.2003. Thereafter a charge sheet was
issued to the petitioner on 20.5.2010 and
departmental proceedings held against
him. The enquiry officer submitted his
report on 30.6.2011 which was received
in
the
office
of
Deputy
District
Magistrate, Deoria on 3.7.2011 but on
15.7.2011 Abdul Kareem died. In this
view of the matter, no departmental action
against late Abdul Kareem could be
concluded.

3. Nevertheless, the disciplinary
authority has proceeded to pass the
impugned order dated 21.11.2011 holding
that since the charges against late Abdul
Kareem had already been proved in the
enquiry proceedings and it had been
established that late Abdul Kareem had
obtained the appointment by fraudulent
means, therefore, he would not be entitled
to any retiral benefits. This order has been
challenged in the present writ petition.
Subsequently,
the
claim
for
compassionate
appointment
of
the
petitioner no. 1 as son of late Abdul
Kareem has also been rejected by the
second impugned order dated 1.3.2012.

4. I have heard Shri Ashok Khare,
learned senior counsel assisted by Shri
Santosh Kumar Yadav for the petitioner
and the learned standing counsel for the
respondents.

5. Shri Ashok Khare submits that
once the father of the petitioner no. 1
Abdul
Kareem
expired,
the
entire
departmental proceedings abated and even
if the enquiry officer had given his
findings against late Abdul Kareem, the
same could not be acted upon by the
disciplinary authority. Shri Khare further
submits that once Abdul Kareem had
expired no punitive order could have been
passed against him withholding his retiral
benefits or any other benefits as it was
always open for the disciplinary authority
to disagree with the findings of the
enquiry officer or to agree with the
2 All] Gulam & Ors. Vs. State U.P. & Ors.
707
findings of the enquiry officer but due to
the death of late Abdul Kareem nothing of
this kind has happened, therefore, the
disciplinary authority could not have
passed the impugned order with holding
the retiral dues of late Abdul Kareem, to
be paid to his family members after his
death. He further submits that since Abdul
Kareem had expired before any penalty
order could be passed against him he
would be treated to be in service and for
that matter in honorable service till his
death without any stigma being attached
to his appointment and on that ground the
claim of the petitioner no. 1 for
compassionate appointment could not
have been rejected.

6. Learned standing counsel on the
other hand submits that the charges against
the petitioner had already been proved in
the enquiry proceedings and his guilt having
been established, there was nothing further
left for the disciplinary authority except to
accept the same, since it had been found in
the enquiry that late Abdul Kareem had
obtained
appointment
by
producing
fraudulent documents, therefore, he could
not be rewarded with retiral benefits etc.
after his death nor could the petitioner no. 1
be
rewarded
with
appointment
on
compassionate ground.

7. It is not in dispute between the
parties that departmental proceedings
were initiated against late Abdul Kareem
and the enquiry report was submitted on
3.7.2011 and that Abdul Kareem died on
15.7.2011. It is nobody's case that late
Abdul Kareem was given any opportunity
to submit his reply to the enquiry report.
In these circumstances once Abdul
Kareem
had
expired
the
entire
departmental proceedings against him
abated as no order has been passed by the
disciplinary
authority
accepting
or
rejecting the findings of guilt recorded by
the enquiry officer against late Abdul
Kareem. The findings recorded by the
enquiry officer would not be sufficient to
deny the heirs of late Abdul Kareem his
retiral dues and other benefits, merely
because the charges had been proved in
the enquiry proceedings. Ultimately it was
for the disciplinary authority to take a
decision as to whether the charges against
late Abdul Kareem stood established or
not irrespective of whatever be the
findings of the enquiry officer and the
Rules contemplate passing of penalty
order against a government servant.

8. Disciplinary proceedings are said to
conclude when the disciplinary authority
passes an order on the report of the Enquiry
Officer. On receipt of the enquiry report the
disciplinary authority may adopt any of the
following three courses:

(a) He may accept the findings of
guilt recorded by the enquiry officer and
after supplying copy of the enquiry report
to the delinquent employee, proceed to
pass the penalty order.

(b) He may disagree with the
findings of the enquiry officer and remit
the matter for further enquiry.

(c) He may disagree with the findings
of the enquiry officer exonerating the
employee and himself after giving show
cause notice to the employee, proceed to
pass orders imposing penalty on the
delinquent employee.

9. Thus disciplinary proceedings do not
conclude merely with the recording of
findings by the enquiry officer when he
submits the enquiry report.
708 INDIAN LAW REPORTS ALLAHABAD SERIES

10. There is another aspect of the
matter. In the present case Abdul Kareem
expired on 15.7.2011, i.e. before the
disciplinary authority could pass any
order on the enquiry report dated
3.7.2011. In the circumstances therefore,
the master and servant relationship
between Late Abdul Kareem and the
respondents also came to an end with his
death and therefore, the impugned order
dated 21.11.2011 could not have been
passed after the death of Abdul Kareem.

11. In my opinion therefore the
disciplinary authority could not have
passed
the
order
dated
21.11.2011
withholding the retiral dues and other
benefits of late Abdul Kareem. When
Abdul Kareem died on 15.7.2011 he
could not have been said to be a
government
servant
thereafter
and
therefore the order dated 21.11.2011 on
the face of it is a wholly illegal and
arbitrary order and has no basis in law and
cannot survive.

12. So far as the matter of
compassionate
appointment
of
the
petitioner no. 1 is concerned, for the same
reasons
that
since
the
disciplinary
authority has not taken any decision
regarding the finding of guilt against late
Abdul Kareem prior to his death, it could
not be said that the charge had been
established against late Abdul Kareem as
disciplinary proceedings are concluded
only with the passing of the order of
disciplinary authority and not when the
enquiry officer submits his report.

13. In this view of the matter, the
writ petition is allowed and both the
impugned orders dated 21.11.2011 and
1.3.2012 are quashed. The respondents
are directed to take steps for payment of
all retiral benefits to the legal heirs of late
Abdul Kareem. So far as the order dated
1.3.2012 regarding rejection of the claim
of petitioner no .1 for compassionate
appointment is concerned, a direction is
issued to the District Magistrate, Deoriarespondent no. 3 to take a decision afresh
in this regard having regard to the
educational qualification of the petitioner
no. 1 and availability of vacancy within a
period of two months from the date a
certified copy of this order is received in
his office.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ [PIL] Petition No. 20773 of
2014

Sumit Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi

Counsel for the Respondents:
C.S.C., Dr. H.N. Tripathi, Sri V.S. Chauhan,Sri
S.K. Srivastava, Mrs. Alka Srivastava

Constitution of India, Art.-226- PIL-
conditions
for
running
brick
kiln
guidelines given to administration as
well as to pollution board.

Held: Para-10
As it has come to the notice of the Court
that some brick kilns have been conducting
their business even without grant of No
Objection Certificates or consent of the
Board, it has become necessary to issue the
following
directions
:-