# Lal Bahadur Singh v. U.P. State Roadways Transport Corporation and others

- **Citation:** (2011) 3 ILRA 1392
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-09
- **Case number:** Special Appeal No. 305 of 2007
- **Bench:** Pradeep Kant, D. K. Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-bahadur-singh-v-u-p-state-roadways-transport-corporation-and-others-42031
- **Pages:** 5

## Text

1392 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
State of Gujarat, (2004) 5 SCC 353,
after placing reliance on its earlier
judgments i.e. P.N. Eswara Iyer etc. Vs.
Registrar Supreme Court of India,
(1980) 4 SCC 680; Sutherdraraja Vs.
State, (1999) 9 SCC 323; Ramdeo
Chauhan Vs. State of Assam, AIR 2001
SC 2231; and Devender Pal Singh Vs.
State of NCT of Delhi, AIR 2003 SC
3365; observed that review applications
"are not to be filed for the pleasure of the
parties or even as a device for ventilating
remorselessness, but ought to be resorted
to with a great sense of responsibility as
well."

15. In view of the abovesaid facts
and taking into consideration that the writ
petition filed by the review petitioner
initially dismissed on the ground that the
petitioner is not a "person aggrieved" in
the subject matter, hence no right to
approach this Court by filling a writ
petition
under
Article
226
of
the
Constitution of India, so on the facts and
grounds on which the present review
petition filed, the same can not be
entertained and decided, because as stated
above under the garb of review, a party
cannot be permitted to re-open the case
and to gain a full-fledged inning, for
taking the Court to take a view contrary to
what had been taken earlier. Review lies
only when there is error apparent on the
face of the record and that fallibility is by
the over-sight of the Court.

16. For the foregoing reasons, the
review petition filed by the review
petitioner lacks merit and is dismissed.

17. No order as to costs.
--------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.12.2011

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE D. K. UPADHYAYA, J.

Special Appeal No. 305 of 2007

Lal Bahadur Singh

 ...Petitioner
Versus
U.P.
State
Roadways
Transport
Corporation and others ...Respondents

U.P.S.R.T.C.
Employees
(other
than
officer) Regulation 1981-Regulation 67
(5)-Disciplinary
Proceeding-after
setting-a-side
earlier
dismissal
with
liberty to proceed in accordance with
law-subsequent
dismissal-without
reinstatement
without
treating
as
suspended employee-entire proceeding
with consequential dismissal-order held
illegal-quashed-direction
to
reinstate
and pay current salary and the salary
during suspension to Quash of dismissal
order-shall be subject to final outcome of
disciplinary proceedings.

Held: Para 11 and 18

Any order of punishment based on an
enquiry,
which
has
been
illegally
initiated or which is void cannot be
saved.
Simply
because
there
is
a
provision of deemed suspension under
Clause (5) of Regulation 67 of the
Regulations known as 'U.P. State Road
Transport Corporation Employees (Other
than Officers) Service Regulations, 1981'
that would not give a defense to
U.P.S.R.T.C. to cover the default.

The legal position thus, is that on
quashing of the order of removal from
service, liberty to hold an enquiry afresh
from a particular stage could have been
availed of, only after the appellant was
reinstated into service and may be that
after
reinstatement,
the
appointing
authority could have passed an order of
3 All] Lal Bahadur Singh V. U.P. State Roadways Transport Corporation and others
1393
suspension and till the enquiry was
concluded, he could have remained
under suspension. But in any case,
without
reinstating
the
appellant,
enquiry could not have been conducted
afresh.
Case law discussed:
2011 (40 ESC 351 (SC)

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard learned counsel for the
appellant Sri R.P. Singh and Sri Ritesh
Kumar Singh for U.P.S.R.T.C.

2. Under challenge is the order
passed by the learned Single Judge dated
22.2.07, by means of which, the writ
petition preferred by the appellant,
challenging his order of removal from
service has been virtually dismissed,
though it stands allowed in part, under
which direction, the appellant has been
directed to be paid arrears of salary for the
period commencing from 13.10.03 to
12.2.04. The learned Single Judge has
described the order as order of dismissal
from service, though in fact, it is an order
of removal from service.

3. In nutshell, the facts of the case
are that the appellant while working as
Bus Conductor in U.P.S.R.T.C. was
removed from service on 4.3.1983. He
was
suspended
for
holding
the
departmental enquiry, but later on, the
suspension order was revoked and he was
allowed to resume duties, and while
working as such, an order of removing
him from service was passed on 4.3.1983.

4. The appellant challenged the
aforesaid order of removal from service
by filing Writ Petition No. 8975 (SS) of
1992, which was allowed and liberty was
given to U.P.S.R.T.C. to hold the enquiry
afresh from the stage of submission of
reply to the charge sheet, as it was found
that the enquiry was not held in
accordance with rules. The operative
portion of the order passed by the learned
Single Judge reads as under:

"In the result, the writ petition is
dismissed in part. The impugned order of
removal from service of the petitioner
dated 4.4.1983 passed by the opposite
party no. is hereby quashed. However, it
will be open for the opposite parties to
make inquiry afresh after stage of
submission of the reply to the chargesheet in accordance with law. In case no
fresh inquiry is conducted against the
petitioner within a period of three months
from the date of production of certified
copy of this order, the petitioner shall be
deemed to have been reinstated in service
with all consequential benefits. But in
case, the inquiry as observed is initiated
against him, the same shall be conducted
in accordance with law and the parties
shall abide by the decision of the said
inquiry."

5. After the decision of the aforesaid
writ petition, fresh enquiry was conducted
from the stage of submission of reply to
the charge sheet and the impugned order
dated 12.12.04 was passed, removing the
appellant from service. This order again
became the subject matter of challenge in
the present writ petition, against which
order, this special appeal has been filed.

6. From perusal of the order
impugned and the arguments advanced by
the parties' counsel, it can be easily
inferred that the sole question which was
urged before the learned Single Judge was
that the entire enquiry proceedings taken
afresh after the decision in the earlier writ
1394 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petition were illegal and void, as the
appellant was not reinstated into service
and
the
enquiry
continued
without
reinstatement, as per the directives issued
by the learned Single Judge in the earlier
writ petition.

7. It is an admitted fact that the
appellant was not reinstated into service
after the judgment was passed in the
earlier writ petition and that the enquiry
was conducted and concluded, treating
him
as
an
ex-employee
of
the
U.P.S.R.T.C.

8. The fact that the appellant was
treated as an ex-employee is also evident
from the impugned order of removal from
service where a specific recital has been
made against the name, Lal Bahadur
Singh, as Bhootpoorva Parichalak (ExConductor).

9. The learned Single Judge though
accepted the plea of the appellant that in
view of the directives issued by the High
Court in the earlier writ petition, it was
obligatory upon the U.P.S.R.T.C. to
reinstate the appellant into service before
proceeding with the enquiry, but refused
to grant relief by observing that the
enquiry has already been held and in view
of Clause (5) of Regulation 67, the
appellant would be deemed to have been
suspended and accordingly, no illegality
can be said to have been committed.
However, the learned Single Judge
directed that the appellant would be
entitled
for
salary
for
the
period
commencing from 13.10.03 to 12.2.04 i.e.
from the date of the order passed in the
earlier writ petition, till the passing of the
present order of removal.

10. The learned Single Judge having
come to the conclusion that illegality was
committed by the U.P.S.R.T.C. in not
reinstating the appellant into service, the
order of removal from service ought to
have been set aside, as the very initiation
of fresh disciplinary proceedings was
illegal and bad in law.

11. Any order of punishment based
on an enquiry, which has been illegally
initiated or which is void cannot be saved.
Simply because there is a provision of
deemed suspension under Clause (5) of
Regulation 67 of the Regulations known
as 'U.P. State Road Transport Corporation
Employees (Other than Officers) Service
Regulations, 1981' that would not give a
defense to U.P.S.R.T.C. to cover the
default.

12. In the case of Chairman-cumM.D. Coal India Ltd. and others vs.
Ananta Saha and others, 2011 (4) ESC
351 (SC), the apex court observed that if
there had been no proper initiation of
disciplinary proceedings after the first
round of litigation, all consequential
proceedings
stood
vitiated.
Their
Lordships also observed that on facts, a
fresh enquiry was to be conducted and if
the appellant had chosen to hold a fresh
enquiry, they would be bound to reinstate
the delinquent and put him under
suspension and the delinquent would be
entitled for subsistence allowances, till the
conclusion of enquiry.

Nothing of this sort was done in the
instant case.

Regulation 67 (5) reads as under:

"67 (5)Where a penalty of dismissal
or removal from service imposed upon an
3 All] Lal Bahadur Singh V. U.P. State Roadways Transport Corporation and others
1395
employee is set aside or declared or
rendered void in consequence of or by a
decision of a court of law and the
appointing authority, on a consideration
of the circumstance of the case, decides to
hold a further inquiry against him on the
allegations on which the penalty of
dismissal or removal was originally
imposed, whether to allegations remain in
their original form or are clarified or
their particulars better specified or any
part thereof of a minor nature omitted-

(a) if he was under suspension
immediately before the penalty was
awarded to him, the order of his
suspension shall, subject to any direction
of the appointing authority, be deemed to
have continued in force on and from the
date of the original order of dismissal or
removal;

(b) if he was not under such
suspension, he shall, if so directed by the
appointing authority, be deemed to have
been placed under suspension by an order
of the competent authority on and from
the date of the original order of dismissal
or removal."

13. It envisages two contingencies
with respect to suspension as given in the
aforesaid sub-clause (a) and (b).

14. The matter in issue is not
covered by sub-clause (a), as the appellant
was not under suspension immediately
before penalty was awarded to him. So far
sub-clause (b) is concerned, that would
also not be of any assistance to
U.P.S.R.T.C. for the reason that the
appointing authority did not issue any
such direction nor pass any order for
suspending the appellant during the
course of enquiry.

15. Thus, Clause (5) of Regulation
67 was not at all attracted in the instant
case.

16. The departmental enquiry could
be conducted only against an employee
who is in service, unless, of course, there
is a provision under the rules permitting
an enquiry against the retired or exemployee. In the instant case, the
U.P.S.R.T.C. also proceeded on the
assumption that it is dealing with a exemployee and not with an existing
employee. There is no such power to hold
the enquiry against an ex-employee in the
service regulations.

17. The learned Single Judge in his
order, directed that in case no fresh
enquiry is conducted against the appellant
within a period of three months from the
date of production of certified copy of this
order, the appellant shall be deemed to
have been reinstated into service with all
consequential benefits. But in case, the
inquiry as observed is initiated against
him, the same shall be conducted in
accordance with law and the parties shall
abide by the decision of the said inquiry.
This obviously means that in case no
enquiry was conducted within the time
provided, the appellant would be deemed
to have been reinstated into service with
all consequential benefits, but in case the
enquiry was held as directed, then he
would be reinstated into service, but
consequential benefits would depend
upon the final outcome of the enquiry.

18. The legal position thus, is that on
quashing of the order of removal from
service, liberty to hold an enquiry afresh
from a particular stage could have been
availed of, only after the appellant was
reinstated into service and may be that
1396 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
after
reinstatement,
the
appointing
authority could have passed an order of
suspension and till the enquiry was
concluded, he could have remained under
suspension. But in any case, without
reinstating the appellant, enquiry could
not have been conducted afresh.

19. For the reasons aforesaid, the
order of removal from service of the
appellant dated 12.2.04 is liable to be set
aside, which is hereby set aside and the
order passed by the learned Single Judge
dated 22.2.07 is also set aside. As a
consequence of the aforesaid order, we
direct that the appellant shall be reinstated
into service forthwith, but the enquiry
shall be conducted afresh from the stage
of submission of reply to the charge sheet,
which shall be done within a maximum
period of three months. The appellant
shall cooperate in the enquiry. The
appellant shall be paid regular salary from
the date of his reinstatement, but the
arrears
of
salary
for
the
period
commencing from date of passing of the
original removal order i.e. 4.3.1983 till
the date of reinstatement shall abide the
result of fresh enquiry.

20. The award of salary for the
period aforesaid by the learned Single
Judge, without setting aside the order of
removal from service, would not validate
the order of removal from service nor
such an order is covered by any
provisions of the service regulations.

21. The special appeal is allowed.
No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED LUCKNOW 05.12.2011

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Writ Petition No. 479 (SB) of 2010

State of U. P. and another
 ...Petitioner
Versus
Dev Raj Vishwakarma & another

 ...Respondents

U. P. Government Servants (Disposal of
the
representation
against
adverse
annual confidential reports & allied
matters) Rules, 1995-Rule 4 and 5Annual confidential Report-direction of
Tribunal
regarding
conflict
between
Reporting-Reviewing
and
Accepting
officer-remark given by reporting officer
shall prevail-for want of recording the
reasons by the reviewing officer-heldincorrect-Tribunal ought to remand the
remand matter to Reporting Officer to
communicate
such
entries
with
opportunity of representation and decide
the same in accordance with law-entry
word "outstanding" and "good" denotes
inferior in comparison of previous yearcould not effective unless communicated
and opportunity of hearing given-Govt.
to issue clear guidelines with clear
terms, whether good, fair, average, very
good-in view of Dev Dutta Case.

Held: Para 46 and 48

This Court is of the view that the learned
Tribunal cannot take up the role of the
reviewing or accepting authority and
cannot direct the authorities to take into
consideration the views recorded by the
Reporting Officer ignoring the entry
recorded by the Reviewing or Accepting
Authority. While setting aside entry
given by the Reviewing and Accepting
Authority, it was incumbent upon the
learned Tribunal to remand the matter to