# Nagar Mahapalika, Varanasi and another v. U.P. Public Service Tribunal and others

- **Citation:** (2003) 2 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-19
- **Case number:** Civil Misc. Writ Petition No. 13955 of 1990
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagar-mahapalika-varanasi-and-another-v-u-p-public-service-tribunal-and-others-40125
- **Pages:** 7

## Headnote

Sri S.S. Sharma
Sri M.C. Dwivedi
Sri D.V. Jaiswal
S.C.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
472
Constitution of India-Article 311 (2)-
Financial Hand Book Vol. II, Parts II to
IV- U.P. Palika Centralised Rules, 1962-
Rule 27 and 31 Principle of Natural
Justice-services
terminated
without
opportunity of hearing termination order
held illegal Principle no work, no pay
whether applies-held-'Yes'

Held- Para 9

The respondent no.3 has not rendered
any service during the said period and
she is not entitled to be given back
wages or salary or arrears of salary or
allowances etc. for the back period,
however she may be permitted for
seniority and if the respondent no. 3 had
already been paid her salary for the
period she had not worked and she is not
entitled for salary from 15.1.81 till the
date of her reinstatement after adjusting
permissible
leave,
therefore,
excess
payment is to be adjusted while making
payment to respondent no.3's retiral
benefit. The payment, which has already
been made, is to be adjusted towards
the payment of retirement.

## Text

2 All] Nagar Mahapalika, Varanasi and another V. U.P. Public Service Tribunal and others 471
aggregate marks secured in written and
personality test. If the petitioner is not
even eligible that is the end of the matter.

24. It may be mentioned that another
petitioner Sri S.K. Srivastava had filed
Writ Petition No. 37358 of 2000 which
had been dismissed by a learned Single
Judge by 14.8.2000. In that petition, the
candidature of the petitioner Sri S.K.
Srivastava had been rejected as he did not
posses the essential qualification as the
experience certificate produced by him
was not valid. Against the judgment in
Writ Petition No. 37358 of 2000, Sri S.K.
Srivastava filed Special Appeal No. 516
of 2000 which is pending in this Court.

25. The learned Single Judge in his
impugned judgment in the petition filed
by S.K. Srivastva has observed at the end
of his judgment that "the result of
petitioner no. 1 shall be subject to the
result of Special Appeal No. 516 of 2000
filed
by
petitioner
no.
1
(S.K.
Srivastava)."

26. The learned Single Judge in his
judgement in the case of the respondent in
this Appeal Sri Surendra Kumar Singh
has merely followed the judgment in Writ
Petition No. 55771 of 2000 filed by S.K.
Srivastava. It may be mentioned that the
candidature of Sri S.K. Srivastava had
been rejected on an altogether different
ground than the candidature of Sri
Surendra Kumar Singh. The candidature
of Sri S.K. Srivastava was rejected on the
ground that he did not posses the
appropriate
experience
certificate,
whereas the candidature of Sri S.K.
Srivastva was rejected on the ground that
he was overage. The Writ Petition filed by
Sri Surendra Kumar Singh (in writ
petition no. 30063 of 1999) by which he
challenged
the
order
rejecting
his
candidature on the ground that he was
overage was dismissed by this Court and
it was held that he was overage. When Sri
Surendra Kumar Singh, the respondent in
this Appeal has been held by this Court to
be overage, we fail to see how the learned
Single Judge could have allowed his writ
petition following the judgment in the
case of Sri S.K. Srivastava whose
candidature had been rejected on an
altogether different ground. If a person is
overage obviously he cannot appear in the
examination.

27. For this reason also the judgment
is not sustainable in law. The Appeal is
therefore
allowed.
The
impugned
judgment is set-aside. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 13955 of 1990

Nagar Mahapalika, Varanasi and another

 ...Petitioners
Versus.
U.P.
Public
Services
Tribunal
No.II,
Lucknow and others
 ...Respondents

Counsel for the Petitioners:
Sri Beni Prasad Agarwal
Sri C.K. Parekh
Sri Anurag Pathak

Counsel for the Respondents:
Sri S.S. Sharma
Sri M.C. Dwivedi
Sri D.V. Jaiswal
S.C.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
472
Constitution of India-Article 311 (2)-
Financial Hand Book Vol. II, Parts II to
IV- U.P. Palika Centralised Rules, 1962-
Rule 27 and 31 Principle of Natural
Justice-services
terminated
without
opportunity of hearing termination order
held illegal Principle no work, no pay
whether applies-held-'Yes'

Held- Para 9

The respondent no.3 has not rendered
any service during the said period and
she is not entitled to be given back
wages or salary or arrears of salary or
allowances etc. for the back period,
however she may be permitted for
seniority and if the respondent no. 3 had
already been paid her salary for the
period she had not worked and she is not
entitled for salary from 15.1.81 till the
date of her reinstatement after adjusting
permissible
leave,
therefore,
excess
payment is to be adjusted while making
payment to respondent no.3's retiral
benefit. The payment, which has already
been made, is to be adjusted towards
the payment of retirement.

(Delivered by Hon'ble R.B.Misra, J.)

1. In this petition order dated
28.2.1990
(Annexure-4
to
the
writ
petition) passed by U.P. Public Services
Tribunal, Lucknow has been challenged
whereby
the
respondent
no.3
was
reinstated in the service with all arrears of
salary and allowances and seniority etc.
(1) Heard Sri C.K. Parekh learned
counsel for the Nagar Mahapalika,
Varanasi and Sri S.S. Sharma for the
respondent no.2 as well as Sri M.C.
Dwivedi for the respondent no.3 Smt.
Sudha Bharagava.

(2) It appears that petitioner appointed
respondent no. 3 as a Social worker in
Nagar Mahapalika, Varanasi on 31.7.1967
and she was also given promotion as
Extension Educator with effect from
1.8.1970. She proceeded on casual leave
from 3.10.1979 to 6.10.1979 and left
Varanasi. Thereafter she requested for
extension of her leave and she was
expected
to
return
on
31.3.1980.
Subsequently on the ground of ailment
she wanted to avail leave from 20.7.1980
to 30.11.1980 and she also requested
leave from 31.3.1980 to 12.7.1980,
however considering the absence of the
respondent no.3 as unauthorised and after
considering her case under Rule 157-A of
Financial Handbook Volume II, Parts II
to IV she was terminated from service.
According
to
respondent
no.3
the
termination could not be made under the
provisions of Financial Handbook as well
as provisions of U.P. Palika Centralise
Rules are also not applicable and the U.P.
Nagar Mahapalika Sewa Niyamavali,
1962 (In short called 'Rule 1961').
According
to
the
respondents
the
punishment order was passed by the
petitioner terminating the service of
respondent no.3 without adopting the
proper procedure as laid down under
Rules 27 and 31 of 'Rule, 1962' and
without affording the proper opportunity
of hearing to the respondent no.3, more
so, in derogation to the provisions of
Article 311 (2) of the Constitution of
India. The order dated 15.1.1981 is by
way of an order simplicor indicating that
the service of respondent no. 3 has been
terminated treating the respondent no.3 as
a temporary employee w.e.f. 18.12.1979.
However as contended on behalf of the
respondent no. 3 that if the circumstances
are
unveiled
the
foundation
for
termination of the respondent no.3 was to
give punishment on the ground of long
absence. According to the petitioner
respondent no. 3 was a temporary
employee and her long absence was not
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2 All] Nagar Mahapalika, Varanasi and another V. U.P. Public Service Tribunal and others 473
permissible, therefore, under Rule 157-A
of Financial Handbook Volume II the
service of the respondent no.3 has rightly
been terminated and the order of the
Tribunal dated 28.2.1990 reinstating the
service of the petitioner (respondent no.
3) with back wages is illegal.

2. Rule 27 of 'Rule 1962' deals with
the punishment and Rule 31 deals with
the
Procedure
for
disciplinary
proceedings. For convenience Rule 31 is
provided herewith as below:

"31. Procedure
for
disciplinary
proceedings -(1) No order (other than an
order based on facts which have led to his
conviction on a criminal charge) of
dismissal, removal or reduction in rank
(which includes reduction to a lower post
or time-scale or to a lower stage in a
time-scale but excludes the reversion to a
lower post of a person who is officiating
in a higher post), shall be passed on any
servant of the Mahapalika unless he has
been informed in writing of the grounds
on which it is proposed to take action and
has
been
afforded
an
adequate
opportunity of defending himself. The
grounds on which it is proposed to take
action shall be reduced in the form of a
definite charge or charges which shall be
communicated to the person charged and
which shall be so clear and precise as to
give sufficient indication to the charged
servant of the facts and circumstances
against him. He shall be required, within
a reasonable time, to put in a written
statement of his defence and to state
whether he desires to be heard in person.
If he so desires or if the authority
concerned so directs an oral enquiry shall
be held in respect of such of the
allegations as are not admitted. At that
inquiry such oral evidence will be lead as
the inquiring officer considers necessary.
The person charged shall be entitled to
cross-examine the witnesses called as he
may wish provided that the officer
conducting the inquiry may for sufficient
reason to be recorded in writing refuse to
call a witness. Neither the Mahapalika
nor the servants of the Mahapalika shall
be entitled to be represented by a counsel.
The proceedings shall contain a sufficient
record of the evidence and statement of
the findings and the grounds thereof. The
officer conducting the enquiry may also
separately from these proceedings make
his own recommendation regarding the
punishment to be imposed on the charged
servant.

(2) This rule shall not apply where
the person concerned has absconded or
where
it
is
for
other
reasons
impracticable to communicate with him.
All or any of the provisions of the rule
may for sufficient reasons to be recorded
in writing be waived, where there is
difficulty
in
observing
exactly
the
requirements of the rule and those
requirements can in the opinion of the
inquiring officer be waived without
injustice to the person charged.

(3) This rule shall also not apply
where it is proposed to terminate the
employment
of
either
a
temporary
servant, or of a probationer whether
during or at the end of the period of
probation. In such cases a simple notice
of termination which in the case of
temporary servant, must conform to
conditions
of
his
service,
will
be
sufficient.

(3) In view of the above provisions, it is
clear that for disciplinary proceeding an
employee permanent or temporary has to
be served a definite charge and the
documents relied upon and after affording
the opportunity of hearing and allowing
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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the employee to defend one's case by
filing written statement for his defence,
by adducing oral and personal hearing and
adducing evidence and avail opportunity
of cross-examining the witnesses and for
conducting proper disciplinary proceeding
day, time and place are to be indicated. In
my respectful consideration the proper
procedure before removing the respondent
no.3 was to be followed in view of Rule
31 of 'Rule 1961' above mentioned. The
respondent no.3 was by virtue of holding
a civil post in Nagar Mahapalika was
entitled to be given protection of Article
311 (2) of the Constitution when her
service was being terminated, however all
these aspects were considered in the
impugned order dated 28.2.90 where the
termination of respondent no. 3 was found
not legally justified.

(4) The counsel for the respondent no. 3
has referred several judgements of the
Supreme Court and this Court in support
of his submission for consideration the
first decision relied by the respondent no.
3 is AIR 1958 Supreme Court 800,
Khem Chand Vs. Union of India and
others. In paragraph 19 of the aforesaid
judgment the Supreme Court has laid
down as under :-

"(19) To summarise the reasonable
opportunity envisaged by the provision
under consideration includes :
(a) An opportunity to deny his guilt and
establish his innocence, which he can
only do if he is told what the charges
levelled
against
him
are
and
the
allegations on which such charges are
based;

(b) An opportunity to defend himself by
cross-examining the witnesses produced
against him and by examining himself or
any other witnesses in support of his
defence; and finally

(c) An
opportunity
to
make
his
representation as to why the proposed
punishment should not be inflicted on
him, which he can only do if the
competent authority, after the enquiry is
over and after applying his mind to the
gravity or otherwise of the charges
proved against the Government Servant
tentatively proposes to inflict one of the
three punishments and communicates the
same to the Government Servant.

In short the substance of the
protection provided by rules, like Rule 55
referred to above, was bodily lifted out of
the rules and together with an additional
opportunity embodied in Section 240 (3)
of the Government of India Act, 1935 so
as to give a statutory protection to the
Government Servants and has now been
incorporated in Article 311 (2) so as to
convert the protection into a constitutional
safeguard."

(5) The next judgment relied upon by the
counsel of the respondent no. 3 is AIR
1961 Supreme Court 1070, Jagdish
Prasad Saxena Vs. The State of
Madhya Bharat, where the Supreme
Court has held that in taking disciplinary
action against the public servant; a proper
disciplinary enquiry must be held against
him after supplying him with the chargesheet, and allowing him the reasonable
opportunity to meet the allegations
contained in the charge-sheet.

(6) Much emphasis has been given by
the counsel for the respondent no. 3 on
Paragraph 5 of the judgment of the
Supreme Court in the case of Kulwant
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2 All] Nagar Mahapalika, Varanasi and another V. U.P. Public Service Tribunal and others 475
Singh Gill Vs. State of Punjab, reported
in 1991 Supreme Court Cases (L & S )
998, where the Supreme Court has
observed in paragraph 5 as under:-

"5. The further contention of Shri
Nayar that the procedure under Rule 8
was followed by issuance of the show
cause notice and consideration of the
explanation given by the appellant would
meet the test of Rules 8 and 9 of the Rules
is devoid of any substance. Conducting an
enquiry, de hors the rules is no enquiry in
the eye of law. It cannot be countenanced
that the pretence of an enquiry without
reasonable
opportunity
of
adducing
evidence both by the department as well
as
by
the
appellant
in
rebuttal,
examination and cross-examination of the
witnesses, if examined, to be an enquiry
within the meaning of Rules 8 and 9of the
Rules. Those rules admittedly envisage,
on denial of the charge by the delinquent
officer, to conduct an enquiry giving
reasonable opportunity to the presenting
officer as well as the delinquent officer to
lead evidence in support of the charge
and in rebuttal thereof, giving adequate
opportunity to the delinquent officer to
cross-examine the witnesses produced by
the department and to examine witnesses
if intended on his behalf and to place his
version; consideration thereof by the
Enquiry Officer, if the Disciplinary
Authority himself is not the Enquiry
Officer. A report of the enquiry in that
behalf
to
be
placed
before
the
Disciplinary Authority who then is to
consider it in the manner prescribed and
to pass an appropriate order as for the
procedure to vogue under the Rules."

(7) In the aforesaid case the Supreme
Court
held
that
without
reasonable
opportunity of adducing evidence both by
the department as well as by the appellant
in rebuttal, examination and crossexamination of the witnesses, it cannot be
said to be valid enquiry under the Rules.
As observed above, there cannot be any
dispute that opportunity is required to
both the delinquent and the employer. The
Division Bench of this Court in the case
of 1994 (4) AWC 3227 para 45
(Subhash Chandra Sharma Vs. M.D.,
U.P.
Cooperative
Spinning
Mills
Federation. Ltd.), held that the dismissal
is illegal since no regular enquiry was
held in that case. It was held by the
Division Bench that the evidence should
have been led against the delinquent in his
presence and he should have been given
opportunity
to
cross-examine
the
witnesses; Similar view has been taken in
another Division Bench's judgment of
Smt. Ram Pyari Vs. State of U.P. and
another, reported in 2000 (2) AWC
1711 (LB).

(8) The petitioner placed reliance on the
judgment dated 25.5.2001 of this Court
(DB) (M. Katju and R.B. Misra,JJ.) in
Writ Petition No. 7133/2001, Radhey
Shyam Vs. Secretary, Minor Irrigation
Department and Rural Engineering
Services, U.P. and others (2001) 2
UPLBEC 1676, where the writ petitioner
working as Incharge Executive Engineer
in the Rural Engineering Services and
Minor Irrigation Department was chargesheeted for his alleged involvement of
embezzlement, financial irregularities and
financial
loss,
however,
was
made
handicapped to participate in the inquiry
for non-payment of subsistence allowance
as well as legal dues during his
suspension and the request of change of
Inquiry officer was not accepted by the
Competent Authority and the ex parte
inquiry was conducted behind his back
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
476
without adopting proper procedure, no
specific date, time and place of inquiry
was fixed, oral and documentary evidence
against the writ petitioner was not
adduced in his presence and he was not
given opportunity to cross-examine the
witnesses against him and he was not
afforded opportunity to produce his own
witnesses and evidences. The ex parte
inquiry was found illegal and the order of
dismissal of writ petitioner was quashed
while allowing the writ petition, however,
keeping in view the financial loss and
irregularities it was made open to the
respondents to hold a fresh inquiry in
accordance with law and pass a fresh
order. It is pertinent to mention that the
Special Leave Petition No. 15226/2001,
State of U.P. Vs. Radhey Shyam Pandey
and others, preferred against the above
order dated 25.5.2001 was dismissed on
1.2.2002 by the Supreme Court.

(9) I have heard learned counsel for the
parties. I find that though the order of
termination is an order of simplicitor but
intention to punish the respondent no.3 on
the ground of long absence was the
foundation and she was entitled to be
given protection of the provisions of
Article 311 (2) of the Constitution and
before termination order the disciplinary
proceeding was to be conducted in view
of the procedure prescribed under Rule 31
of 'Rule 1962'. Since the proper procedure
has not been adopted and the respondent
was not afforded proper and adequate
opportunity of hearing as such the
termination
order
was
not
legally
sustainable. I do not find any impropriety
and illegality in the said impugned order
dated
28.2.90
of
learned
Tribunal,
therefore, this court is not inclined to
interfere so far as setting aside the
termination order dated 15.1.1981 of
learned Tribunal. However since an
employee has right to be given pay for the
work rendered by him subject to the
admissibility of permissible leave in
accordance to the provisions of law and
the rules applicable to the service of a
particular employee. One employee is not
to be given salary for the period he has
not worked on the principle of no pay
without work. Even if it is presumed that
the respondent no. 3 was entitled for
reinstatement and seniority, however she
had not rendered any work and she was
only given due leave permissible to her
after being reinstatement into service but
not the payment of those days for which
she has not worked. The respondent no.3
has not rendered any service during the
said period and she is not entitled to be
given back wages or salary or arrears of
salary or allowances etc. for the back
period, however she may be permitted for
seniority and if the respondent no. 3 had
already been paid her salary for the period
she had not worked and she is not entitled
for salary from 15.1.81 till the date of her
reinstatement after adjusting permissible
leave, therefore, excess payment is to be
adjusted
while
making
payment
to
respondent no.3's retiral benefit. The
payment, which has already been made, is
to be adjusted towards the payment of
retirement.

In view of the above observations,
writ petition is dismissed.
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2 All] Ram Saran Goyal V. State of U.P. through Special Secretary (Home) and others
477
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.06.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 20053 of 2003

Ram Saran Goyal

 ...Petitioner
Versus
State of U.P. through Special Secretary
(Home) and others
 ...Respondents

Counsel for the Petitioner:
Sri S.M. Haider Zaidi

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Judicial
Review-Scope-High
Court
while
exercising writ jurisdiction cannot form a
different opinion as an appellate courtimpugned order quashed.

Held- Para 9

This Court while exercising powers of
judicial review, cannot form a different
opinion or sit in appeal over the order. It
can only interfere where the committee
has not considered the case; relied upon
some irrelevant materials or has failed to
take into consideration the materials
which were relevant to the matter. The
fact
that
the
petitioner
was
recommended
for
police
medal
for
gallantry was one of the circumstance
but that cannot be said to conclusive
reason to arrive at a decision.

(B) Service Law- Out of turn promotion-
Petitioner posted as Sub-Inspector- G.O.
dated 3.2.1994 providing out of turn
promotion
to
only
those
showing
exemplary courage and bravery in an
encounter
with
some
notorious
or
hardened
Criminals
or
for
showing
courage or bravery in their arrest or for
taking risk in performance of duty-In
present
case
impugned
order
of
Committee
showing
that
in
joint
operation in comparison to heavy force
and weapons, there were four CriminalsThree of them made good their escape-
From one Criminal shot dead only a
Single barrel gun and a pistol were
recovered-Committee further found that
neither
of
police
personals
either
individually or collectively demonstrated
any such exemplary courage or bravery,
which may entitle them out of turn
promotion- Award of Police Medal for
gallantry may be one of consideration for
out of turn promotion on ground of
exemplary courage and bravery or taking
risk in performance of duties, but that by
itself cannot be conclusive proof to form
an opinion for bravery and couragePetition dismissed.

Held- Para 10

The award of police medal for gallantry
may be one of the consideration for out
of turn promotion on the ground of
exemplary courage and bravery or taking
risk in performance of duties, but that,
by itself, cannot be a conclusive proof to
form an opinion for bravery and courage.
Case Law Referred:
Krishna Kumar Pundir V. State of U.P., 2001
(3) A.W.C. 2163

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Petitioner is at present posted as
Sub Inspector, Civil Police, Kanpur
Nagar. He joined the services on 16th
January, 1984. In the year 1999, petitioner
was posted at Fatehgarh. An office
message was communicated to him on
27.10.1999 by the Senior Superintendent
of Police, Farrukhabad for immediate
rushing to Village Ishapur. Petitioner
immediately rushed to the spot with
additional police force and was engaged
in operation in which hardened criminal
Nem Kumar alias Bilaiya was flushed out
from inside a house where he had taken
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