# Komal Prasad Yadav v. Regional Manager, U.P.S.R.T.C and others

- **Citation:** (2012) 1 ILRA 214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-17
- **Case number:** Civil Misc. Writ Petition No. 17789 of 1991
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/komal-prasad-yadav-v-regional-manager-u-p-s-r-t-c-and-others-42102
- **Pages:** 5

## Headnote

Sri S.K.Sharma, Sri Sameer Sharma
Sri S.K.Sharma, S.C.

U.P.
Disciplinary
Proceedings(Administrative
Tribunal)Rule 1947: Rule-4-on reference
of Govt. the State Tribunal by impugned
order
imposed
punishment
of
-
compulsory retirement without payment
of gratuity and forfeiture of remaining
dues for period of suspension-without
holding
enquiry-admittedly
the
petitioner
being
employee
of
Corporation-not holding civil post-heldadjudication by Tribunal under 1947
Rules-without jurisdiction-order passed
1 All] Komal Prasad Yadav V. Regional Manager, U.P.S.R.T.C and others

215
by Tribunal including impugned order
quashed.

## Text

214 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

inquiry and submitted his report dated
16.12.2011 to this Court which has been
taken on record. The report so submitted by
the Principal Secretary, Legislative Council
says that the private Respondent had
contested the election of Legislative
Council using name of Babu Singh
Kushwaha and he used the said name in all
the papers furnished at the time of his
nomination.

18. The report so submitted by the
Principal Secretary, Legislative Council
needs to be examined against the backdrop
of the allegations made in the writ petition.
The petitioner in the instant writ petition has
stated that on the death of his father,
opposite party no. 7 inherited certain
agricultural land and in the mutation
proceedings,
name
of
the
private
Respondent was recorded in the revenue
records as Ram Charan alias Babu Singh
Kushwaha, son of Bhagwat Prasad. The
said order of mutation in favour of the
private respondent in the style as aforesaid,
was passed by the competent authority on
24.08.2003. Thus, from the averments made
by the petitioner himself, it is clear that the
private Respondent has been using Babu
Singh as his alias since the year 2003 itself.
On a query being made to learned counsel
for the petitioner as to how using of an alias
name constituted an offence, no satisfactory
reply could be given by him.

19. It is also not a case where some
person has withdrawn the emoluments and
other facilities from the State Exchequer
impersonating himself to be some one else.
Thus, the Court finds that the prayer for
recovery of emoluments and other facilities
drawn by the private respondent, in the facts
mentioned
in
the
writ
petition,
is
misconceived. The petitioner himself has
stated that in fact opposite party nos.7 and 8
are the same person. For these reasons,
prayer made by the petitioner for getting
some inquiry conducted into the allegations
made in the writ petition is also not tenable.

20. In the light of foregoing
discussions, this Court comes to the definite
conclusion that the instant writ petition does
not raise any question of larger public cause
so as to call for any interference by this
Court. Accordingly, the writ petition is
dismissed, however, with no order as to
cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J

Civil Misc. Writ Petition No. 17789 of 1991

Komal Prasad Yadav

 ...Petitioner
Versus
Regional
Manager,
U.P.S.R.T.C
and
others

 ...Opposite Parties

Counsel for the Petitioner:
Sri R.K.Jain, Sri Rahul Jain

Counsel for the Respondents:
Sri S.K.Sharma, Sri Sameer Sharma
Sri S.K.Sharma, S.C.

U.P.
Disciplinary
Proceedings(Administrative
Tribunal)Rule 1947: Rule-4-on reference
of Govt. the State Tribunal by impugned
order
imposed
punishment
of
-
compulsory retirement without payment
of gratuity and forfeiture of remaining
dues for period of suspension-without
holding
enquiry-admittedly
the
petitioner
being
employee
of
Corporation-not holding civil post-heldadjudication by Tribunal under 1947
Rules-without jurisdiction-order passed
1 All] Komal Prasad Yadav V. Regional Manager, U.P.S.R.T.C and others

215
by Tribunal including impugned order
quashed.

(Delivered by Hon'ble Sudhir Agarwal,J)

1. Heard Sri Rahul Jain, learned
counsel for
the
petitioner.
Learned
Standing Counsel appearing on behalf of
State of U.P. do not propose to file any
separate counter affidavit but adopts the
stand taken by respondents No.1, 2 and 3
hence as jointly agree I proceed to decide
the matter under the rules of the Court at
this stage.

2. A short question up for
consideration in this case as to whether
the order impugned in this writ petition
has been passed by competent authority or
not.

3. The writ petition is directed
against
the
order
dated
30.5.1991
(Annexure 7 to the writ petition) whereby
Regional Manager, U.P. State Road
Transport Corporation Ltd., Azamgarh by
means of impugned order dated 30.5.1991
has imposed punishment of compulsory
retirement without payment of gratuity
and forfeiture of remaining dues for the
period of suspension. The petitioner has
been held to be guilty of certain
allegations constituting misconduct which
is said to have been proved in a
departmental enquiry.

4. The submission on behalf of the
petitioner is that an employee/staff of
Uttar Pradesh State Road Transport
Corporation (hereinafter referred to as
"UPSRTC")
could
not
have
been
proceeded at the instance of State
Government by conducting an enquiry by
officers of State Government under U.P.
Disciplinary Proceedings (Administrative
Tribunal) Rules, 1947 and disciplinary
authority in UPSRTC cannot act as a
rubber stamp to simply pass an order of
punishment
passed
on
the
enquiry
conducted
by
officers
of
State
Government.
It
is
contended
that
petitioner was absorbed in UPSRTC and
therefore ceased to be governed by
provision applicable to the employees of
U.P. Government holding 'civil post'.

5. Brief facts to support the above
submissions which are not disputed may
be referred to as under.

6. The petitioner was appointed as
Assistant Booking Clerk in erstwhile U.P.
State Government Roadways in the year
1956 and promoted as Booking Clerk in
the year 1965. In 1972, UPSRTC was
incorporated and established. All the
employees
working
in
U.P.
State
Government Roadways were transferred
to UPSRTC. Initial transfer was on
deputation till the employees are absorbed
in UPSRTC. U.P. State Road Transport
Corporation
Employees
(Other
than
Officers)
Service
Regulation,
1981
(hereinafter referred to as "Regulation
1981") came into force on 19.6.1981.
Simultaneously U.P. State Roadways
Organisation (Abolition of Posts and
Absorption of Employees) Rules, 1982
(hereinafter referred to as "1982 Rules")
was
published
on
28.4.1982
for
absorption of employees of U.P. State
Government
Roadways
came
on
deputation to UPSRTC. The aforesaid
1982 Rules came into force on 28.7.1982.

7. The petitioner thus became
employee of UPSRTC on 28.7.1982.
However, State Government by order
dated 25.3.1983 referred departmental
enquiry against petitioner to be conducted
by Administrative Tribunal-II, U.P. under
216 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Rule 4 of U.P. Disciplinary Proceedings
(Administrative Tribunal) Rules, 1947
(hereinafter referred to as "1947 Rules").
The Tribunal issued a charge sheet to the
petitioner on 24.5.1983 which was replied
by petitioner on 4.7.1983 denying the
charges. After holding enquiry, Tribunal
vide order dated 8.5.1986 held charges
proved and recommended for compulsory
retirement, forfeiture of gratuity and
salary restricted to the amount of
subsistence
allowance
paid
during
suspension.

8. It may be noted at this stage
during pendency of enquiry before
Tribunal, Regional Manager, UPSRTC
suspended the petitioner on 31.01.1985.
At the initial stage of suspension,
petitioner was paid 50% of salary but vide
order
dated
8.11.1985,
salary
was
enhanced to 3/4th of the pay and later on
suspension
itself
was
revoked
on
30.8.1986.

9. After receiving Tribunal's order
dated 8.5.1986, the Regional Manager,
UPSRTC issued show cause notice to the
petitioner on 8.5.1986 annexing copy of
Tribunal
dated
08.5.1986
proposing
punishment of compulsorily retirement
and other punishments. The petitioner
submitted his reply and thereafter the
impugned order has been passed.

10. Sri Rahul Jain, learned counsel
for the petitioner submitted that petitioner
ceased to be a Government servant on
28.7.1982 and became an employee of
UPSRTC. Thereafter, the Governor had
no authority to interfere in the service
matter of petitioner and enquiry could not
have been referred to the Tribunal under
the provisions of 1947 Rules since the
aforesaid Rules are not applicable to the
employees of Corporation or Company
but are confined to the employees of State
Government holding a civil post. It is
contended that 1947 Rules are applicable
only to those employees who are
governed by Rules framing power under
proviso to Article 309 of Constitution and
not to others. Employees of UPSRTC are
not holder of civil post and therefore
aforesaid Rules are not applicable hence
entire
enquiry
conducted
against
petitioner is without jurisdiction rendering
entire enquiry and impugned order
founded
thereon
illegal.
He
also
contended that since no departmental
enquiry has been held against the
petitioner by UPSRTC under the rules
applicable
to
its
own
employees,
therefore, impugned order founded on an
enquiry held by an authority who had no
jurisdiction in the matter, is vitiated in law
and void ab initio.

11. Sri Sameer Sharma, learned
counsel appearing for UPSRTC did not
dispute that erstwhile UP State Roadways
ceased when its assets liabilities and
employees etc. stood transferred to
UPSRTC created under Section 3 of Road
Transport Corporation Act, 1950 w.e.f.
1.6.1972. He has also not disputed that
petitioner ceased to be a Government
employee on 28.7.1982 and became
employee of UPSRTC from then. These
averments contained in para 5 of the writ
petition have been admitted in para 5 of
the counter affidavit.

12. In the circumstances the only
question need be adjudicated by this
Court, whether Tribunal under 1947 Rules
had any jurisdiction to hold enquiry
against petitioner.
1 All] Komal Prasad Yadav V. Regional Manager, U.P.S.R.T.C and others

217

13. Here in this regard I would
prefer to refer Rule 3 and 4 of 1982 Rules
which came into force on 28.4.1982 and
reads as under:

"3. Applicability and overriding
effect.-(1) These rules shall apply to the
U.P.
State
Roadways
Organisation
employees working on deputation with the
U.P. State Road Transport Corporation.

(2)They
shall
have
effect
notwithstanding anything to the contrary
contained in any rules, regulations or
order.

4.
Option
to
employees
and
absorption in Corporation service.-(1) An
employee of the U.P. State Roadways
Organisation,
who
was
placed
on
deputation with the Corporation and who
does not wish to be absorbed in the
service of the Corporation, shall, within 3
months from the notification of these rules
in the Gazette, intimate the Secretary to
Government in the Transport Department
that he does not wish to be so absorbed.

(2) Every other employee who does
not give an intimation, in accordance with
sub-rule (1), shall be deemed to have
exercised his option for absorption in the
service of the Corporation.

(3) An employee, who is deemed to
have opted for absorption in the service of
the Corporation, in accordance with subrule (2), shall stand so absorbed with
effect from the date of expiry of three
months from the date of notification of
these rules and his service under the State
Government shall, with effect from the
same date cease."

14. The consequence of absorption
in Rule 4 has been provided in Rule 5 that
the relevant posts in U.P. State Roadways
organization shall stand abolished. Now
the question would be as to whom 1947
Rules are applicable. Sub rule 3 of Rule 1
of 1947 Rules itself read as under:

"They shall apply to all Government
servants under the rule-making control of
the Governor, and will be applicable to
any acts, omissions or conduct arising
before the date of commencement of these
rules as they are applicable to those
arising after that date."

15. Rule 4 of 1947 Rules, which
confer power upon Government to refer
the matter to the Tribunal also provides
that such a reference shall be made in
respect to an individual government
servant or class of government servant.
Admittedly, the petitioner having already
ceased to be a government servant w.e.f.
28.7.1982, as admitted by respondents
also, ceased to be governed by 1947 Rules
and his matter could not have been
referred to Tribunal under Rule 4 thereof

16. That being so, the enquiry
conducted against petitioner by Tribunal
on a reference made by Government was
ex facie illegal and without jurisdiction. It
is admitted that no enquiry has been
conducted against petitioner by UPSRTC
under
the
rules
applicable
to
the
employees of UPSRTC. The impugned
order is an order of punishment. It is not
disputed that under the rules applicable to
employees of Corporation, an order
imposing punishment could have been
passed
only
i.e.
after
holding
departmental
enquiry
after
giving
opportunity of hearing to the concerned
employees in accordance with procedure
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

of enquiry provided in the rules applicable
to such employees of UPSRTC and not
otherwise.

17. In view of above, the impugned
order cannot sustain. The writ petition is
allowed. The impugned order dated
30.05.1991 (Annexure 7 to the writ
petition) is hereby quashed.

18. However this order shall not
preclude the respondents from passing a
fresh order in accordance with law after
making such enquiry as prescribed in law.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2012

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE DINESH GUPTA,J.

Civil Misc. Writ Petition No. 22510 of 2002

Man Mohan Swaroop

 ...Petitioner
Versus
State Of U.P. Thru' Secy. Appointment
Deptt. & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri Anupam Kulshreshtha

Counsel for the Respondents:
C.S.C

Constitution
of
India,
Article
226Deduction of pension-petitioner while
working as Special Land Acquisition
Officer-send proposal for compensation
by placing reliance on sale deed-on
objection by Board of Revenue-amended
proposal send-which was enhanced by
reference
proceeding-disciplinary
proceeding the conclusion drawn by
authority-held-wholly
misconceivedonce the initial amount as proposed by
petitioner-stood confirmed by District
Judge-order of deduction of 10 %
pension by disciplinary Authority on
probability
and
assumption
not
sustainable-direction
to
give
entire
withheld amount with 8 % interest
given.

Held: Para 7

From the facts stated above, it is clear
that initially a proposal was sent by the
petitioner to the Board of Revenue and
after advice of the Board of Revenue
another exemplar was applied and a
revised award was sent as per direction
of the Board of Revenue. It is also
important to mention here that the said
award was challenged subsequently by
the claimants before the District Judge
and the District Judge in reference under
section 18 of the Land Acquisition Act,
enhanced the award to Rs.5/- per square
yard which was initially submitted by the
petitioner. Thus, in fact there was no loss
to
the
government.
It
is
only
hypothetical observation of the enquiry
officer that if the proposal of the
petitioner was accepted by the Board of
Revenue there would be a loss to the
government. While, in fact the award as
proposed by the petitioner was approved
by the District Judge u/s. 18 of the Land
Acquisition Act. Therefore, the whole
enquiry and the order of the disciplinary
authority
was
based
merely
on
probability and imagination and the
deduction of 10% pension was illegal
and not sustainable in law.

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

1. We have heard learned counsel
for the parties.

2. This writ petition has been filed
by the petitioner seeking a writ of
mandamus directing respondent no.3 to
decide the review/representation of the
petitioner dated 16.08.1996 as also to
issue writ of certiorari quashing the