# Limited v. V.U.Warrier 2005 (5) SCC

- **Citation:** (2012) 1 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-08
- **Case number:** Civil Misc. Writ Petition No. 35463 of 2008
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/limited-v-v-u-warrier-2005-5-scc-42107
- **Pages:** 7

## Headnote

C.S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal) Rules 1999-Rule-7-Termination
of Temporary Govt. Servant-by putting
stigm of misconduct-without holding
enquiry as per procedure contained in
Rule
7-Termination
order
not
sustainable-Quashed with 50 % back
wages with liberty to initiate disciplinary
proceeding
by
following
procedure
prescribed under Rule 1999.

Held: Para 13

In view of the foregoing discussions, I
am of the view that the major penalty of
termination imposed by the respondents
is faulty for the reason that; for the
misconduct,
the
services
of
the
government
servant
cannot
be
terminated under the Rules of 1975 and
if the termination is based upon the
misconduct,
then
the
procedure
1 All] Somnath V. State of U.P.and others

233
contained in Rule 7 of 1999 Rules, which
are mandatory in nature, ought to have
been followed.
Case law discussed:
Union of India (UOI) and Ors Vs Mahaveer C.
Singhvi in Special Leave Petition (Civil) No.
277702 of 2008 decided on 29.07.2010; 1997
(1) LLJ 831; 2000 (1) U.P.L.B.E.C. 541; 2008
(3) ESC 1667; 2001 (2) U.P.L.B.E.C. 1475;
Laturi Singh Vs. U.P. Public Service Tribunal
and others (Writ Petition No. 12939 of 2001
decided on 6.5.2005); 2011 (8) ADJ 397;
(1970) 2 SCC 871; AIR 1974 SC 2192; AIR
1980 SC 1896; 1984 2 SCC 369; AIR (2010) 3
SCC 3492; 2008 Vol. (10) ADJ 283

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

1972 Rules which are statutory in
character because they are enacted in
exercise of powers conferred by the
proviso to Article 309 and clause (5) of
Article 148 of the Constitution; (ii) that
the pension is not an ex gratia payment
but it is a payment for the past service
rendered; and (iii) it is a social welfare
measure rendering socio-economic justice
to those who in the hey-day of their life
ceaselessly toiled for the employer on an
assurance that in their old age they would
not be left in lurch......"

8. The ratio laid down in these cases
had been subsequently followed by the
Apex Court in series of its decisions
including the case of Secretary, O.N.G.C.
Limited vs. V.U.Warrier 2005 (5) SCC
245.

9. The State Government has also
issued
a
Government
Order
No.31713/Dus/983/89 on 28th July, 1989 in
which, with a view to avoid the delay in
payment of pension, it is provided that the
service book is to be completed two years
prior to the date of retirement.

10. Regulation 912 (E) of the Civil
Service Regulations also provide that the
retirement of a Government employee
shall be published in the Gazette within a
week from the date of his retirement.
There is a complete mechanism for grant
of post retiral dues at the earliest and in
case there is any technical problem in
payment of final pension, then there is a
provision for provisional pension till the
payment of final pension.

11. Accordingly, this writ petition
succeeds and is allowed. The respondent
authorities are directed to pay the entire
retiral dues of the petitioner including upto-date pension within three months from
the date a certified copy of this order is
produced before the competent authority
and also pay the future pension to the
petitioner in accordance with law, month
by month.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 35463 of 2008

Somnath

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

Counsel for the Petitioner:
Sri Siddharth Khare
Sri Adarsh Bhushan
Sri Suresh Singh

Counsel for the Respondents:
C.S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal) Rules 1999-Rule-7-Termination
of Temporary Govt. Servant-by putting
stigm of misconduct-without holding
enquiry as per procedure contained in
Rule
7-Termination
order
not
sustainable-Quashed with 50 % back
wages with liberty to initiate disciplinary
proceeding
by
following
procedure
prescribed under Rule 1999.

Held: Para 13

In view of the foregoing discussions, I
am of the view that the major penalty of
termination imposed by the respondents
is faulty for the reason that; for the
misconduct,
the
services
of
the
government
servant
cannot
be
terminated under the Rules of 1975 and
if the termination is based upon the
misconduct,
then
the
procedure
1 All] Somnath V. State of U.P.and others

233
contained in Rule 7 of 1999 Rules, which
are mandatory in nature, ought to have
been followed.
Case law discussed:
Union of India (UOI) and Ors Vs Mahaveer C.
Singhvi in Special Leave Petition (Civil) No.
277702 of 2008 decided on 29.07.2010; 1997
(1) LLJ 831; 2000 (1) U.P.L.B.E.C. 541; 2008
(3) ESC 1667; 2001 (2) U.P.L.B.E.C. 1475;
Laturi Singh Vs. U.P. Public Service Tribunal
and others (Writ Petition No. 12939 of 2001
decided on 6.5.2005); 2011 (8) ADJ 397;
(1970) 2 SCC 871; AIR 1974 SC 2192; AIR
1980 SC 1896; 1984 2 SCC 369; AIR (2010) 3
SCC 3492; 2008 Vol. (10) ADJ 283

(Delivered by Hon'ble Ran Vijai Singh,J.)

1. This writ petition has been filed for
issuing a writ of certiorari quashing the
order dated 30.06.2008 passed by the
Executive
Engineer,
Irrigation
Construction Division, Agra by which the
petitioner's service has been terminated
under the U.P. Temporary Government
Servants (Termination of Service ) Rules,
1975 (hereinafter called as Rules of 1975).
It appears, the petitioner was appointed as
Runner after following the procedure as
contained in Group 'D' Employees
Service Rules 1985 First Amendment
Rules 1986 after advertising the vacancy
in "Dainik Jagran Newspaper". The
petitioner's
appointment
letter
dated
07.11.2007 shows that the petitioner's
appointment was made while fulfilling the
back log quota, on temporary basis, with
the rider that the service of the petitioner
can be terminated at any time after one
month notice or in lieu of notice, one
month salary. It appears that for certain
conduct which were contrary to the
Government Servant Conduct Rules, the
petitioner's service was terminated by the
respondent
no.3
vide
order
dated
30.06.2008, served on 02.07.2008.

2. Sri Adarsh Bhushan, learned
counsel appearing for the petitioner
submitted that although it is settled law
that temporary Government Servants have
no right to the post and their services can
be
terminated
at
any
time,
but
simultaneously it is also equally settled
that if the service is terminated on account
of misconduct of an employee then without
taking recourse to prove misconduct as
contemplated under the relevant rules
governing
the
field
namely
U.P.
government
Servant
(Discipline
and
Appeal) Rules, 1999, the punishment for
misconduct cannot be inflicted, that too
major penalty of termination from service.
In his submissions the order has been
passed under Rules of 1975, therefore the
same cannot be sustained in the eye of law.
In support of his contention he has placed
reliance upon the judgement of the Apex
Court in Union of India (UOI) and Ors Vs
Mahaveer C. Singhvi in Special Leave
Petition (Civil) No. 277702 of 2008
decided on 29.07.2010, wherein it has been
held that if a discharge is based upon
misconduct or if there is a live connection
between the allegations of misconduct and
discharge, then the same, even if couched
in language which is not stigmatic, would
amount to a punishment for which a
departmental enquiry was imperative.

3. On the other hand learned
Standing Counsel appearing for the State
respondents has vehemently contended that
the temporary government servants have
no right to the post and their service can be
terminated at any time without any notice.
In his submissions the impugned order is
not stigmatic, therefore, no infirmity can
be attached with the impugned order of
termination.
234 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

4. I have heard Sri Adarsh Bhusan,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents and perused the record.

5. The case of the petitioner is that
the petitioner's service has been terminated
for certain charges i.e., giving wrong
information deliberately to the superior
officers, telling lie, exertion of undue
pressure in the Government work, Political
pressure and making wrong complaints,
which according to the learned counsel for
the petitioner is baseless and mentioning of
that in the impugned termination order is
not only stigmatic but it amounts to
punishment.

6. For testing this argument of
learned counsel for the petitioner, it would
be necessary to narrate few lines of
termination order dated 30.06.2008 and the
stand of the respondents in para 11 of the
counter affidavit, which is reproduced
herein under:

Relevant portion of order of termination

1- Jh lkseukFk] juj }kjk vius mPpkf/kdkfj;ksa
dks xyr lwpuk nsuk vkSj tkucw> dj >wB cksyus ds
dkj.k jktdh; dk;ksZ esa O;o/kku mRiUu djuk rFkk
jktdh; dk;ksZ dks u djuk ,oa jktuSfrd ncko
Myokuk] deZpkjh@vf/kdkfj;ksa ds izfr >wBh f'kdk;r
djuk] in ds vuq:i dk;Z ugha djukA

Relevant extract from para 11 of the
counter affidavit filed by the State -
respondents.

2- ^^..........;g fd fjV ;kfpdk ds izLrj 20 o
21 ,oa ;kfpdk ds leFkZu esa of.kZr fd;s x;s vk/kkj
ftl izdkj ls dgs x;s gSa] furkUr vlR;] Hkzked o
fujk/kkj gksus ds dkj.k mijksDr of.kZr rF;ksa ds
ifjisz{; esa Lohdkj ;ksX; ugha gSaA tSlk fd mijksDr
izLrjksa esa Li"V fd;k tk pqdk gS fd m0iz0 vLFkkbZ
deZpkjh 1⁄4lsok lekfIr1⁄2 fu;ekoyh&1975 esa fufgr
O;oLFkk ds vUrxZr ;kph Jh lkseukFk] vLFkkbZ
deZpkjh ds iwoZ dk;Zo`Rr ,oa vYi lsok vof/k ds
nkSjku deZpkjh vkpj.k fu;ekoyh dk mYYak?ku ,oa
tkucw> dj vuq'kklughurk ,oa dnkpkj ds
QyLo:i mlds nks"k mtkxj gksus ij ;kph ds fo:)
lsok lekfIr vkns'k lsok 'krksZa ds vuqlkj gh ikfjr
fd;k x;k gSA**

7. From the perusal of the order of
termination as well as the stand taken by
the State in paragraph no. 11 of the counter
affidavit, it transpires that the petitioner's
services have been terminated for his
conduct against the Government Servant
Conduct Rules, vuq'kklughurk (Indiscipline)
and dnkpkj ('Misconduct' as defined in
'Advanced
Learner's
Hindi
English
Dictionary' by Dr. Hardev Bahri and in
website 'www.shabdkosh.com') and that
has been reduced in writing in the
impugned termination order. It is well
settled law that if a government servant is
terminated or is removed or dismissed
from the service for his misconduct, then
the misconduct has to be proved in
accordance with the rules governing the
field, i.e., the Rules of 1999, so far as it
relates to the petitioner. The penalty of
termination of service is a major penalty in
view of the Rule 3 of the 1999 Rules and
for imposing the major penalty, the
procedure has been prescribed under Rule
7 of the Rules, which requires the proper
charge sheet and coupled with oral inquiry.
For appreciation, the procedure contained
in 1999 Rules is reproduced hereunder:

"7-Procedure for imposing major
penalties- Before imposing any major
penalty on a Government Servant, an
inquiry shall be held in the following
manner :

(i)The Disciplinary Authority may
himself inquiry into the charges or appoint
1 All] Somnath V. State of U.P.and others

235
an Authority Subordinate to him as Inquiry
Officer to inquire into the charges.

(ii)The
Facts
constituting
the
misconduct on which it is proposed to take
action shall be reduced in the from of
definite charge or charges to be called
charge -sheet. The charge-sheet shall be
approved by the Disciplinary Authority.

Provided that where the Appointing
Authority is Governor, the charge -sheet
may be approved by the Principal
Secretary or the Secretary, as the case may
be, of the concerned department.

(iii)The charge farmed shall be so
precise and clear as to give sufficient
indication to the charged Government
Servant of the facts and circumstances
against him. The proposed documentary
evidences and the name of the witnesses
proposed to prove the same along with oral
evidence, if any, shall be mentioned in the
charge-sheet.

(iv)The charge Government Servant
shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in
the charge-sheet and whether desires to
give or produce evidence in his defence .
He shall also be informed that in case he
does not appear or file written statement on
the specified date, it will be presumed that
he has none to furnish and inquiry officer
shall proceed to complete the inquiry exparte.

(v) The charge-sheet, along with the
copy of the documentary evidences
mentioned therein and list of witnesses and
their statements, if any shall be served on
the
charged
Government
Servant
personally or by registered post at the
address mentioned in the official records in
case the charge-sheet could not be served
in aforesaid manner, the charge- sheet shall
be served by publication in a daily
newspaper having wide circulation :

Provided that where the documentary
evidence
is
voluminous,
instead
of
furnishing its copy with charge-sheet, the
charge Government servant shall be
permitted to inspect the same before the
Inquiry Officer.

(vi) Where the charged Government
Servant appears and admits charges, the
Inquiry Officer shall submit his report to
the Disciplinary Authority on the basis of
such admission.

(vii) Where the charged Government
Servant denies the charge the Inquiry
Officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in presence of the
charge Government Servant who shall be
given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidences, the Inquiry officer shall call and
record the oral evidence which the charged
Government Servant desired in his written
statement to be produced in h is defence :

Provided that the Inquiry Officer may
for reasons to be recorded in writing refuse
to call a witness.

(viii)
The
inquiry
officer
may
summon any witnesses to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental inquiries (Enforcement of
236 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Attendance of witnesses and production of
documents) Act 1976.

(ix) The Inquiry Officer may ask any
question he pleases, at any time of any
witness or from person charged with a
view to discover the truth or to obtain
proper proof of facts relevant to charges.

(x) Where the charged Government
Servant does not appear on the date fixed
in the inquiry or at any stage of the
proceeding inspite of the service of the
notice on him or having knowledge of the
date the Inquiry Officer shall proceed with
the inquiry exparte. In such a case the
Inquiry Officer shall record the statement
of witnesses mentioned in the charge-sheet
in absence of the charged Government
Servant.

(xi)The disciplinary Authority, if it
considers if necessary to do so, may by an
order appoint a Government Servant or a
legal
practitioner
to
be
known
as
"Presenting Officer" to present on its
behalf the case in support of the charge.

(xii)The Government servant may
take
the
assistance
of
any
other
Government Servant to present the case on
this behalf but not engage a legal
practitioner for the purpose unless the
presenting
office
appointed
by
the
Disciplinary
Authority
is
a
legal
practitioner of the disciplinary Authority
having regard to the circumstance of the
case so permits.

Provided that the rule shall not apply
in following cases :

(i)Where
any
major
penalty
is
imposed on a person on the ground of
conduct which has led to his conviction on
a criminal charge.

or

(ii) Where the Disciplinary Authority
is satisfied, that for reason to be recorded
by it in writing, that it is not reasonably
practicable to held an inquiry in the
manner provided in these rules; or

(iii) Where the Governor satisfied
that, in the interest of the security of the
state, it is not expedient to hold an inquiry
in the manner provided in these rules."

8. From the perusal of Rule 7, it
transpires that for imposing major penalty,
a complete mechanism has been provided
under the Rules and there are various
pronouncements, namely, State of U.P.
and another Vs. T.P. Lal Srivastava, 1997
(1) LLJ 831, Subash Chandra Sharma
Vs. Managing Director and another, 2000
(1) U.P.L.B.E.C. 541, Salahuddin Ansari
Vs. State of U.P. and others, 2008 (3)
ESC 1667, Subash Chandra Sharma Vs.
U.P. Cooperative Spinning Mills and
others, 2001 (2) U.P.L.B.E.C. 1475,
Laturi Singh Vs. U.P. Public Service
Tribunal and others (Writ Petition No.
12939 of 2001 decided on 6.5.2005) and
Dr. Subhash Chandra Gupta Vs. State of
U.P., 2011 (8) ADJ 397, wherein it has
held that the major penalty cannot be
imposed without taking recourse to the
provisions contained under the Rules for
imposing major penalty.

9.

Learned
Standing
Counsel
appearing for the State - respondent has
submitted that here, in the present case, the
indisciplined
behaviour,
exertion
of
political pressure and the misconduct was
the motive for terminating services of the
1 All] Somnath V. State of U.P.and others

237
petitioner and it was not the foundation,
therefore, in view of the settled proposition
of law, where the indisciplined act is a
motive and not foundation, which led to
termination of service, the inquiry is not
necessary and the service could be
terminated under the Rules of 1975.

10. I have considered the rival
submissions and perused the order of
termination and the stand taken by the
respondent in the counter affidavit. From
the perusal of which, I am of the definite
opinion that the petitioner's behaviour, his
conduct against the Government Servant
Rules and his misconduct as alleged in the
counter affidavit is the foundation and not
the motive. Had it been a motive, there
would have been an order simplicitor
terminating
the
services,
without
mentioning all these things.

11. The apex Court in the case of
State of Bihar and others Vs. Shiva
Bhikshuk Mishra (1970) 2 SCC 871,
Shamsher Singh Vs. State of Punjab and
another, AIR 1974 SC 2192, Gujrat Steel
Tubes Ltd. Vs. Gujarat Steel Tubes
Mazdoor Sabha, AIR 1980 SC 1896,
Anoop Jaiswal Vs. Government of India
and another 1984 2 SCC 369, Nehru
Yuva Kendra Sangathan Vs. Mehbub
Alam Laskar (2008) 2 SCC 479 has held
that if a discharge is based upon
misconduct or if there is a live connection
between the allegations of misconduct and
discharge, then the same, even if couched
in language which is not stigmatic, would
amount to a punishment for which a
departmental enquiry was imperative. This
decision has been followed in the case of
Union of India and others Vs. Mahaveer
C. Sindhia, reported in AIR (2010) 3 SCC
3492.

12. A Division Bench of this Court in
the case of Paras Nath Pandey Vs.
Director, North Central Zone, Cultural
Centre, Allahabad, reported in 2008 Vol.
(10) ADJ 283, after considering various
pronouncements of the Hon'ble Supreme
Court has observed as under:

"........ once it is evident that the
termination simplicitor is founded on the
alleged act of misconduct said to be
proved by the authorities concerned, an
inquiry giving due opportunity to the
employee is must and in the absence of
such an inquiry, a punitive termination
cannot be sustained. It is not the case
whether the authorities acted fairly or
unfairly but the question is whether inquiry
conducted by the authorities was in
accordance with law or not and whether
before recording a finding against an
employee in respect to the alleged
misconduct the employee was given
adequate opportunity of defence."

13. In view of the foregoing
discussions, I am of the view that the major
penalty of termination imposed by the
respondents is faulty for the reason that;
for the misconduct, the services of the
government servant cannot be terminated
under the Rules of 1975 and if the
termination is based upon the misconduct,
then the procedure contained in Rule 7 of
1999 Rules, which are mandatory in
nature, ought to have been followed.

14. In the result, the writ petition
succeeds and is allowed. The impugned
order dated 30.6.2008 passed by the
Executive
Engineer,
Irrigation
Construction Division, Agra is hereby
quashed. The respondents are directed to
reinstate the petitioner with 50% back
wages within two months from the date of
238 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

receipt of certified copy of the order of this
Court. It may be observed that in case the
respondents decide to hold disciplinary
proceeding against the petitioner, they are
at liberty to do so in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 44055 of 2011

Ramanand Gaur

 ...Petitioner
Versus
Ram Sanehi and others ...Respondents

Counsel for the Petitioner:
Sri Siddhartha Varma
Sri SAntosh Kumar MIshra

Counsel for the Respondents:
Sri Arvind Kumar Singh-II
Sri P.R. Maurya
Sri Uma Kant
Sri Rishu Mishra
C.S.C.

U.P. Panchayat Raj Act, 1947-Section 12C-readwith-Rule 3 of U.P. Panchayat Raj
(Settlement of Education Dispute) Act
1994-Election Petition-non joinder of
elected or failure candidate-so far relief
declaring
election
is
concern-non
impleadment-not fatal-but second part
of relief declaring petitioner a selected
candidate-order
rejecting
election
petition-proper-petition allowed partly.

Held: Para 19 and 20

Under Rule 3 of 1994 Rules, an election
petition, where only relief for declaring
the election of the elected candidate as
invalid is prayed for, it is not necessary
to
implead
all
other
unsuccessful
candidates as a party. This Court would,
therefore, in the facts of the case
segregate two reliefs, which have been
prayed for by the election petitioner and
would hold that so far as the first relief
qua the election of the present petitioner
being declared invalid is concerned, the
petition is maintainable and does not
suffer from the vice of non-impleadment
of necessary parties.

So far as the second relief prayed for in
the
election
petition
qua
election
petitioner being declared as elected after
setting aside the election of the elected
candidate is concerned, the petition
suffers from vice of non-impleadment of
other
unsuccessful
candidate
and
therefore to that extent the election
petition stands dismissed.
Case law discussed:
(2001) 3 SCC page 594 (Para-121); AIR 2000
SC 2502; (2009) 10 SCC 541 (Para -20); AIR
1954 SC 210; (2001) 3 SCC 594

(Delivered by Hon'ble Arun Tandon, J. )

1. Petitioner before this Court was
elected as Pradhan of the village Chutka
Gaon as per the results of the elections
declared on 28.10.2010. Respondent no.
1 Ram Sanehi, who was the defeated
candidate, filed an election petition
under
Section
12-C
of
the
U.P.
Panchayat
Raj
Act,
which
was
registered as Election Petition No. 1 of
2010.

2. The reliefs prayed for in the
election petition are as follows:

"1- ;g fd mijksDr ifjfLFkfr;ksa esa izfri{kh
la[;k&1 dk pquko voS/k ?kksf"kr djrs gq, jn~n
?kksf"kr djrs gq, muds LFkku ij ;kph dks pquko
esa fot;h ?kksf"kr fd;k tkosA

2- ;g fd vykok ;k ctk; nknjlh etdwj
okyk ds oknh ftl fdlh Hkh nhxj nknjlh dk
eq'rgd o utj vnkyr djkj ik;k tk; rks
mldh Hkh fMdzh cgd oknh f[kykQ izfroknhx.k
lkfnj
Qjek;h
tk;A