# Kailash Nath Gupta v. Enquiry Officer, Allahabad Bank Allahabad and others

- **Citation:** (2003) 2 ILRA 512
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-07
- **Case number:** Civil Misc. Writ Petition No. 24112 of 1988
- **Bench:** A.K. Yog, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-nath-gupta-v-enquiry-officer-allahabad-bank-allahabad-and-others-40156
- **Pages:** 5

## Headnote

Constitution
of
India
Article
226-
Service- dismissal- for infraction at dutycharges not gravious warrant dismissalService record unbleshished- petitioner
compelled to enter into litigation upto
Apex
Court-meanwhile
retired-heldpetitioner
entitled
to
notional
reinstatement-and all benefit, privileges
in terms of money, arrears of salary etc.-
treating him in continues service till his
reinstatement-entitled to all post retiral
benefit as if without break in serviceBank,
however,
entitled
to
deduct
Rs.46,000 for losses on account of
petitioners
negligence-petition
partly
allowed.

Held- Para 9, 10

(A) The petitioner had throughout an
unblemished service record.

(B) Infraction
of
duty,
if
any,
responsible for loss to the Bank was not
of a gravity or of serious/extreme nature
which warranted dismissal from service.

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2 All] Kailash Nath Gupta V. Enquiry Officer, Allahabad Bank Allahabad and others
513
(C) The appellant can be called upon to
mitigate seriousness of lapse on his part
and restore the interest of the Bank by
depositing the amount in question, in the
instant case- as observed by the Apex
Court, about Rs. 46,000/-.(Rupees Forty
Six Thousand only).

Service-quantum
of
punishment-
infraction of duty- resultant losses to the
bank of Rs. 46,000/- Service record of
petitioner
unbleshished
-petitioner
should deposit amount in question to
restore interest of bank- does not
warrant dismissal.

Held-Para 10

The petition stands partly allowed to the
extent and subject to the directions
indicated above.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
512
in order to prevent him from engaging in
such activities.

16. The satisfaction of the detaining
authority that the petitioner, if released on
bail would indulge in similar activities
prejudicial to the maintenance of public
order depends upon the nature of incident
and antecedents and apprehension of
repeating tendency. In the instant case
there were materials before the detaining
authority that prior to the incident of
28.4.2002 the petitioner had demanded
chowth from the brother of the deceased
as well as from other shopkeepers. It is
also clear from the material on record that
after above incident of 28.4.2002 again
the petitioner threatened the complainant
of the case with dire consequences, in
case he did pairvi of the murder case of
his brother. Therefore, the previous as
well as subsequent conduct of the
petitioner indicated that he was indulged
in realizing Chowth from the shopkeepers
and he who dared to oppose him and his
associates, he would be done to death.
These activities of the petitioner were thus
sufficient material to record satisfaction
of the detaining authority that on release
on bail the petitioner would again indulge
in similar activities prejudicial to the
maintenance of public order and thus
there were compelling necessary before
the detaining authority to pass the
detention order.

17. In view of our findings on the
above points we find no force in the writ
petition.

18. The writ petition is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 24112 of 1988

Kailash Nath Gupta

...Petitioner
Versus
Enquiry Officer (Sri R.K. Rai) Allahabad
Bank, Regional Officer, Allahabad and
others.

 ...Respondents

Counsel for the Petitioner:
Sri A.S. Rai
Sri Rajendra Kumar

Counsel for the Respondents:
Sri R.K. Kakkar
Sri S.K. Kakkar

Constitution
of
India
Article
226-
Service- dismissal- for infraction at dutycharges not gravious warrant dismissalService record unbleshished- petitioner
compelled to enter into litigation upto
Apex
Court-meanwhile
retired-heldpetitioner
entitled
to
notional
reinstatement-and all benefit, privileges
in terms of money, arrears of salary etc.-
treating him in continues service till his
reinstatement-entitled to all post retiral
benefit as if without break in serviceBank,
however,
entitled
to
deduct
Rs.46,000 for losses on account of
petitioners
negligence-petition
partly
allowed.

Held- Para 9, 10

(A) The petitioner had throughout an
unblemished service record.

(B) Infraction
of
duty,
if
any,
responsible for loss to the Bank was not
of a gravity or of serious/extreme nature
which warranted dismissal from service.

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2 All] Kailash Nath Gupta V. Enquiry Officer, Allahabad Bank Allahabad and others
513
(C) The appellant can be called upon to
mitigate seriousness of lapse on his part
and restore the interest of the Bank by
depositing the amount in question, in the
instant case- as observed by the Apex
Court, about Rs. 46,000/-.(Rupees Forty
Six Thousand only).

Service-quantum
of
punishment-
infraction of duty- resultant losses to the
bank of Rs. 46,000/- Service record of
petitioner
unbleshished
-petitioner
should deposit amount in question to
restore interest of bank- does not
warrant dismissal.

Held-Para 10

The petition stands partly allowed to the
extent and subject to the directions
indicated above.

(Delivered by Hon'ble A.K. Yog, J.)

Shri A.S. Rai, Advocate for the petitioner
Shri R.K. Kakkar, Advocate alongwith
Shri S.K. Kakkar, Advocate for the
Respondents

1. Shri S.K. Kakkar, Advocate
informs that this writ petition was decided
in the past by this Court, Respondents
have taken away file from him and at
present he has no instruction in the matter.

2. The record shows that the matter
went to the Supreme Court against the
High Court judgment and order dated 1-51996. The Bank contested the matter in
supreme Court. It had a review petition
wherein Apex Court passed order dated
March 27,2003, the relevant extract is
reproduced:

"......The High Court is requested to
dispose of the matter within six months
from
the
date
of
receipt
of
this
order........"

We do not appreciate the conduct of
the Respondent Bank.

3. It was incumbent upon the
Respondent Bank to have instructed Sri
R.K. Kakkar, Advocate or engaged
another
counsel
(if
so
advised)
immediately on the rendering of the
aforesaid judgment and order dated 27-32003, if they were serious to contest the
matter. The Bank has done nothing of the
kind. Such practice is not uncommon.
when a party is to gain by ensuring to
delay the hearing of the case. It may be
one of that kind of case.

4. We, therefore, decline to adjourn
the case. Proceed further with the hearing
of the case more so because the petitioner
has retired, and no detailed arguments are
required to decide the question of
quantum of punishment only on the basis
of facts already ascertained by the court
while adjudicating and holding petitioner
guilty of the charge.

5. Having perused the record of the
case we wish to extract relevant portion of
the judgment of the Apex court which is
as follows:

".......The
disciplinary
authority
found that some charges had been proved,
i.e., the appellant had not taken proper
care in obtaining collateral security etc.
However, there is no finding recorded by
the authority that he has done this for his
personal gain or with corrupt motive. It
would mean that he was slack in the
performance of the duty. For this, the
major punishment of dismissal from
service is not the appropriate remedy. On
the facts and circumstances of the case,
we think that the appropriate punishment
would be stoppage of three increments
with cumulative effect. The order of
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
514
dismissal stands set aside. Instead, the
authority is directed to calculate his
pension and other benefits on the basis of
the stoppage of three increments with
cumulative effect.

The
appeal
is
accordingly
allowed. No costs.
S.D/.(K. Ramaswamy,J.)
New Delhi
(D.P. Wadhwa,J.)"
May 5,1997

6. Review Petition (C) No. 284/98)
filed against the aforesaid judgment was
allowed by the Supreme Court vide
judgment and order dated 2-3-1998 which
is as follows:

"Heard both sides in the Review
Petition.
There is an error apparent on the
face of the impugned order which has not
been taken into account the settled
position of law, as propounded by this
Court in State Bank of India & another
Versus
Samrendra
Kishore
Endow
another 1994(2) SCC 537. The impugned
order is set aside and the Special Leave
Petition shall be placed for consideration.

In view of our order in the Review
Petition,
the
contempt
Petition
is
dismissed."

7. After review, the Apex Court
again disposed of the appeal and made
following observations:
".....In the background or what has
been stated above, one thing is clear that
the power of interference with the
quantum of punishment is extremely
limited. But when relevant factors are not
taken note of, which have some bearing
on the quantum of punishment, certainly
the court can direct re-consideration or in
an appropriate case to shorten litigation,
indicate the punishment to be awarded. It
is stated that there was no occasion in the
long
past
service
indicating
either
irregularity
or
misconduct
of
the
appellant except the charges which were
the subject matter of his removal from
service. The stand of the appellant as
indicated above is that though small
advances
may
have
become
irrecoverable, there is nothing to indicate
that the appellant had misappropriated
any money or had committed any act of
fraud. If any loss has been caused to the
Bank (which he quantifies at about
Rs.46,000/-) that can be recovered from
the appellant. As the reading of the
various articles of charges go to show, at
the most there is some procedural
irregularity which cannot be termed to be
negligence
to
warrant
the
extreme
punishment of dismissal from service.

These aspects do not appear to have
been considered by the High Court in the
proper perspective. In the fitness of
things, therefore, the High Court should
examine
these
aspects
afresh.
The
consideration shall be limited only to the
quantum of punishment and not to any
other question. As the appellant would
have superannuated in the normal course
in the year 1994, and the matter is
pending for a long time, the High Court is
requested to dispose of the matter within
six months from the date of receipt of this
order. It is made clear that no opinion has
been expressed by us as to what would be
the appropriate punishment. In this view,
the impugned order is set aside. The writ
petition is remitted to the High Court for
disposal in the light of what is stated
above.

The appeal stands disposed of in the
above terms with no order as to costs.
 (Sd/-Shivraj V.Patil,J.)
 (Sd/- Arijit Pasayat.)"
New Delhi
(underlined by us to lay
March 27, 2003 emphasis)
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2 All] Kailash Nath Gupta V. Enquiry Officer, Allahabad Bank Allahabad and others
515
8. The observations made by the
Apex Court in the afore quoted passage
extracted from the judgment and order
dated 27-3-2003 are to the following
effect:

(1) Interference with the quantum of
punishment
is
extremely
limited.
Quantum of punishment can be the
subject matter of re-consideration by the
Authority or the Court itself in an
appropriate case to shorten litigation.
(2) Factors relevant for deciding the
issue of quantum of punishment will be
(i) gravity of the offence (ii) previous
antecedent of the employee in question.

Supreme Court, in above context,
took note of the following:
(i) There
has
been
no
other
complaint/charge
of
misconduct
or
otherwise against the appellant except the
subject matter of the disciplinary enquiry
in question leading to removal of his
service.
(ii) The appellant's case (which has not
been dis-believed) that in the charge with
respect to unrecoverable small advances,
there is nothing to indicate that the
appellant had mis-appropriated himself
the said money or guilty of committing
any fraud.
(iii) If loss has been caused to the Bank
(quantified at Rs. 46,000/-) that can be
recovered from the appellant; apparently
in view of the fact that loss to the Bank
was not because of any mal-intention, or
negligence in duty. Supreme Court has
noted- "As the reading of the various
articles of charges go to show, at the most
there is some procedural irregularity
which cannot be termed to be negligence
to warrant the extreme punishment of
dismissal from service."

9. In view of the above observations
of the Apex Court, the circumstances,
relevant for consideration in order to
settle quantum of punishment, we take
into account the following:
(A) The petitioner had throughout an
unblemished service record.

(B) Infraction of duty, if any, responsible
for loss to the Bank was not of a gravity
or of serious/extreme nature which
warranted dismissal from service.

(C) The appellant can be called upon to
mitigate seriousness of lapse on his part
and restore the interest of the Bank by
depositing the amount in question, in the
instant case- as observed by the Apex
Court, about Rs. 46,000/-.(Rupees Forty
Six Thousand only).

(D) The
petitioner
(employee
in
question) has already attained the age of
superannuation on August, 1994 and in
that view of the matter he is not going to
be reinstated in the service of the Bank so
as to give rise to apprehension on the part
of the employer of any nature like loss of
trust and confidence or recurrence of
similar lapse in future. On the other hand,
the minor punishment in the nature of
awarding adverse entry like, warning
and/or censure entry, even if now
awarded shall be of no relevance and will
serve no purpose because the petitioner
has already retired.

(E) The employee was subjected to
disciplinary enquiry in the year 1987 and
he has been compelled to enter into
litigation upto the Apex Court. This
petition is part of second inning. Thus, it
is evident that petitioner has spent
considerable amount on this litigation.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
516
In view of the above, our conclusions
are-

(1) The petitioner is entitled to be
notionally reinstated forthwith since the
order of dismissal has already been set
aside by the Apex Court vide judgment
and order dated 27-3-2003 in Civil
Appeal
treating
the
petitioner
in
continuous service till he attained the age
of superannuation.

(2) The petitioner will be entitled to all
benefits, privileges in terms of money,
arrears of salary; etc, had he continued in
service without taking into account the
order of dismissal and later set aside by
the Supreme Court along with 10% per
annum simple interest from the date
amounts became due till the date of actual
payment.

(3) The petitioner will be entitled to all
post retrials benefits treating as if there
has been no break in service and he
continued throughout, as indicated above.
Relevant papers shall be submitted by the
petitioner forthwith along with certified
copy of this judgment within six weeks
from today before the concerned authority
for necessary compliance as above within
three months of receipt of certified copy
of this judgment.

(4) The petitioner shall deposit Rs.
46,000/- along with 10% simple interest
per annum from the date of dismissal till
the date of actual payment. The Bank
shall be entitled to deduct and account for
the aforesaid amount while making
payment of any arrears to the petitioner
from 1987 till he attained the age of
superannuation,
provided
the
loan
amounts or part thereof, in respect of
which, petitioner was charged, has not
been refunded by the borrower or realised
by the Bank so far.

10. The petition stands partly
allowed to the extent and subject to the
directions indicated above.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 865 of 2001

M/s Rapti Commission Agency...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri P.K. Misra
Sri Bharat Ji Agarwal
Sri Piyush Agrawal

Counsel for the Respondents:
S.C.

U.P. Trade Tax Act- Section 8E-the
petition is firm M/s Tian Yuan India Pvt.
Ltd.- Consignment of mentha oil- on the
ground that the firm has not deducted
the
Taxes
from
the
seyers
and
agriculturist- held liable to pay the trade
taxes.

Held -Para 21

The petitioner is certainly liable to pay
purchase tax under the U.P. Trade Tax
Act in respect of his purchases within the
State. Hence there can be no doubt that
intra state purchases made by the
petitioner can be subjected to tax under
the Act.
Case law discussed:
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