# Nagendra Nath Tripathi v. State Cane Service Authority Lko & Ors

- **Citation:** (2014) 2 ILRA 972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-27
- **Case number:** Service Single No. 3991 of 2014
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagendra-nath-tripathi-v-state-cane-service-authority-lko-ors-43058
- **Pages:** 6

## Headnote

C.S.C., K.S. Pawar

U.P. Cane Cooperative Service Regulation
1975, Regulation 69-read with Art. 351(A)
of Civil Services Regulation-Dismissal from
service of employee governed by provision
of
Cooperative
Service
Regulationprovision CCA rules not applicable-no
provisions to continue the disciplinary
proceeding-even after retirement-defence
of Court direction-not available-in view of
Apex Court decision of Bhagirathi Jena
case-disciplinary proceeding automatically
lapse-dismissal order quashed with all
consequential benefits.

Held: Para-10
From
a
perusal
of
the
U.P.
Cane
Cooperative Service Regulations, 1975 it
is noticed that there is no provision
similar to or pari materia with Article
351 (A) of the Civil Service Regulations,
which
may
permit
the
respondent
authorities
to
proceed
with
the
disciplinary proceeding against a retired
2 All]. Nagendra Nath Tripathi Vs. State Cane Service Authority Lko & Ors.
973
employee. Therefore, the only conclusion
that can be drawn in the absence of any
such provision is that, once the employee
has
retired
and
the
disciplinary
proceeding have not been concluded, for
whatever
reason,
such
disciplinary
proceedings shall automatically lapse
with the retirement of the employee.

Case Law discussed:
Civil Appeal (S) No. 5848-49 of 2014; Special
Leave Petition(Civil) Nos. 29550-29551 of
2010; (2007) 7 SCC 81; (1999) 3 SCC 666.

## Text

972 INDIAN LAW REPORTS ALLAHABAD SERIES
Noratanmal Chouraria Vs. M.R. Murli &
another 2004 (5) SCC 689 said:

"Misconduct, inter alia, envisages
breach of discipline, although it would not
be possible to lay down exhaustively as to
what would constitute conduct and
indiscipline, which, however, is wide
enough to include wrongful omission or
commission whether done of omitted to
be done intentionally or unintentionally. It
means, "improper behaviour, intentional
wrongdoing or deliberate violation of a
rule or standard of behaviour".

Misconduct
is
said
to
be
a
transgression of some established and
definite
rule
of
action,
where
no
discretion is left except what necessity
may demand, it is a violation of definite
law."

16. In Baldev Singh Gandhi Vs.
State of Punjab & others AIR 2002 SC
1124, with reference to the provisions of
Punjab Municipal Act, the Apex Court,
considering the term 'misconduct' held as
under :

" 'Misconduct' has not been defined
in the Act. The word 'misconduct' is
antithesis of the word 'conduct.' Thus,
ordinarily the expression 'misconduct'
means wrong or improper conduct,
unlawful behaviour, misfeasance, wrong
conduct, misdemeanour etc."

17. In view of the aforesaid
exposition of law and considering the
allegations contained in the order and
charge sheet, I am of the view that the
allegations levelled against the petitioner
do not amount to 'misconduct'. The
impugned order, therefore, cannot sustain.

18. In the result, the writ petition is
allowed.
The
impugned
order
dated
10.4.2007 (Annexure 11 to the writ petition)
is hereby quashed. The petitioner shall be
entitled to all consequential benefits besides
costs, which I quantify to Rs.25,000/-.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2014

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Service Single No. 3991 of 2014

Nagendra Nath Tripathi ...Petitioner
Versus
State Cane Service Authority Lko & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Virendra Kumar Dubey

Counsel for the Respondents:
C.S.C., K.S. Pawar

U.P. Cane Cooperative Service Regulation
1975, Regulation 69-read with Art. 351(A)
of Civil Services Regulation-Dismissal from
service of employee governed by provision
of
Cooperative
Service
Regulationprovision CCA rules not applicable-no
provisions to continue the disciplinary
proceeding-even after retirement-defence
of Court direction-not available-in view of
Apex Court decision of Bhagirathi Jena
case-disciplinary proceeding automatically
lapse-dismissal order quashed with all
consequential benefits.

Held: Para-10
From
a
perusal
of
the
U.P.
Cane
Cooperative Service Regulations, 1975 it
is noticed that there is no provision
similar to or pari materia with Article
351 (A) of the Civil Service Regulations,
which
may
permit
the
respondent
authorities
to
proceed
with
the
disciplinary proceeding against a retired
2 All]. Nagendra Nath Tripathi Vs. State Cane Service Authority Lko & Ors.
973
employee. Therefore, the only conclusion
that can be drawn in the absence of any
such provision is that, once the employee
has
retired
and
the
disciplinary
proceeding have not been concluded, for
whatever
reason,
such
disciplinary
proceedings shall automatically lapse
with the retirement of the employee.

Case Law discussed:
Civil Appeal (S) No. 5848-49 of 2014; Special
Leave Petition(Civil) Nos. 29550-29551 of
2010; (2007) 7 SCC 81; (1999) 3 SCC 666.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. Counter affidavit filed today is
taken on record.

2. The petitioner is aggrieved by the
order of penalty dated 22.10.2013 and the
appellate order dated 27.05.2014.

3. According to the petitioner he was
working as Senior Assistant. He was
placed under suspension by order dated
30.06.2006. Aggrieved the petitioner filed
Writ Petition No.5971 (S/S/) of 2006 and
the Court by order dated 14.07.2006 was
pleased to stay the operation of the order
of
suspension
as
being
without
jurisdiction. The petitioner thereafter was
reinstated in service. A chargesheet was
issued to him on 30.04.2003, to which the
petitioner
submitted
his
reply
on
07.08.2003. An Enquiry Officer was
appointed and departmental enquiry was
held. Subsequently by the order dated
28.12.2006 the petitioner was dismissed
from
service
and
a
recovery
of
Rs.1,28,184.31 was ordered from him.
The petitioner challenged the order of
dismissal by filing Writ Petition No.715
(S/S) of 2007. The same was allowed by
order dated 22.07.2013 and the order of
dismissal dated 28.12.2006 was quashed.
However, in the meantime since the
petitioner
had
attained
the
age
of
superannuation on 28.02.2011, liberty was
granted to the respondents to initiate
departmental proceedings from the stage
which has been found to be initiated in that
judgment with a further direction that the
petitioner shall be given copy of the enquiry
report and also be given an opportunity of
hearing. It is in pursuance thereof that the
impugned order dated 22.10.2013 has been
passed and recovery of certain amounts
were
ordered
against
the
petitioner.
Aggrieved, the petitioner preferred a
departmental appeal which was also
rejected vide order dated 27.05.2014.

4. I have heard Sri O.P. Srivastava,
learned Senior Counsel assisted by Sri
V.K. Dubey, for the petitioner, Sri K.S.
Pawar,
learned
counsel
for
the
respondents no.1 & 4 and the learned
Additional Chief Standing Counsel for the
respondents no.2 & 3.

5. The principal ground for attacking
the impugned order taken by the learned
senior counsel for the petitioner is that after
the petitioner had already retired from
service the departmental proceedings could
not have been proceeded against him
inasmuch as the provisions of Article 351
(A) of the Civil Service Regulation are not
applicable to the U.P. Cane Co-operative
Federation and in any case no Rules or
Regulations or any other provision of law
pari materia to the provisions of Article 351
(A) of the CSR are available in the U.P.
Cane Co-operative Service Regulation,
1975.
It
is
submitted
that
in
the
circumstances the entire proceedings after
the petitioner had already retired from
service were ab initio void.

6. Sri K.S. Pawar, on the other hand,
submitted that the proceedings were
974 INDIAN LAW REPORTS ALLAHABAD SERIES
continued against the petitioner in view of
the liberty granted by this Court in Writ
Petition No.715 (S/S) of 2007 in its
judgment and order dated 22.07.2013. A
counter affidavit has been filed and in
paragraph 38 thereof it has been stated
that the impugned order dated 22.10.2013
has been passed in purported compliance
of
judgment
of
the
Court
dated
22.07.2013. The averments in paragraph
38 of the counter affidavit are in reply to
the averments made in para 44 of the writ
petition, wherein the petitioner has taken
a specific stand that there is no provision
in the 1975 Regulations under which the
disciplinary
proceedings
could
be
continued against a retired employee.

7. Sri O.P. Srivastava, learned
Senior Counsel has placed reliance upon a
recent decision of the Supreme Court in
Civil Appeal (S) No.5848-49 of 2014
arising out of Special Leave Petition
(Civil) Nos.29550-29551 of 2010, Dev
Prakash Tiwari Vs. U.P. Co-operative
Institutional Service Board, Lucknow and
Ors. it is submitted that in the case before
the Supreme Court, the Supreme Court
considered the provisions of U.P. Cooperative Employees Service Regulations,
1975. It is submitted that these Rules have
been framed by
virtue of powers
conferred under Section 122 of the U.P.
Co-operative Societies Act, 1965 and it is
submitted that the U.P. Cane Co-operative
Employees Service Regulations 1975 has
also been framed in exercise of powers
under Section 122 of the Act, 1965 and in
both the Regulations there is no power
conferred by the Regulations upon the
authorities to proceed against a retired
employee. The Supreme Court was also
considering its earlier judgment in the
U.P. Co-operative Federation Ltd. and
Others Vs. L.P. Rai, reported in (2007) 7
SCC
81,
wherein
the
disciplinary
proceeding against the employee was
quashed by the High Court since no
opportunity of hearing was given to him
and the Management in its appeal before the
Supreme Court sought for grant of liberty to
hold a fresh enquiry and the Supreme Court
has held that the charges levelled against the
employee were not minor in nature and
therefore it would not be proper to foreclose
the right of the employer to hold fresh
inquiry only on the ground that the
employee has since retired from service and
accordingly liberty was granted to the
Management
to
proceed
with
the
disciplinary
proceeding
against
the
employee. The facts of U.P. Co-operative
Federation are identical to that in the case of
the
present
petitioner.
However,
the
Supreme Court has held that while deciding
the case of L.P. Rai (supra) the earlier
judgment of the Supreme Court in the case
of Bhagirathi Jena Vs. OSFC (1999) 3 SCC
666 had not been brought to the notice of
the Court wherein the Court had held that in
the absence of a provision to that effect in
the Regulations, departmental proceedings
could not have been continued after the
employee had retired from service. The
Supreme Court therefore, held that once the
employee had retired from service, there is
no authority vested with the respondents for
continuing the disciplinary proceeding even
for purposes of imposing any reduction in
the retiral benefits payable to the appellant.
In the absence of any authority it must be
held that the enquiry had lapsed and the
appellant was entitled to get full retiral
benefits.

8. Paragraphs 6 to 11 of the judgment
of the Supreme Court read as follows:

"6. We have carefully considered the
rival submissions. The facts are not in
2 All]. Nagendra Nath Tripathi Vs. State Cane Service Authority Lko & Ors.
975
dispute. The High Court while quashing
the earlier disciplinary proceedings on
the ground of violation of principles of
natural
justice
in its
order
dated
10.1.2006 granted liberty to initiate the
fresh inquiry in accordance with the
Regulations. The appellant who was
reinstated in service on 26.4.2006 and
fresh
disciplinary
proceeding
was
initiated on 7.7.2006 and while that was
pending, the appellant attained the age of
superannuation and retired on 31.3.2009.
There is no provision in the Uttar
Pradesh Co-operative Employees Service
Regulations, 1975, for initiation or
continuation of disciplinary proceeding
after retirement of the appellant nor there
is any provision stating that in case
misconduct is established a deduction
could be made from his retiral benefits.
An occasion came before this Court to
consider the continuance of disciplinary
inquiry
in
similar
circumstance
in
Bhagirathi Jena's case (supra) and it was
laid down as follows:

" 5. Learned Senior Counsel for the
respondents also relied upon Clause (3)
(c) of Regulation-44 of the Orissa State
Financial Corporation Staff Regulations,
1975. It reads thus : "When the employee
who has been dismissed, removed or
suspended is reinstated, the Board shall
consider and make a specific order :-

(i)
Regarding
the
pay
and
allowances to be paid to the employee for
the period of his absence from duty, and
(ii) Whether or not the said period shall
be treated as a period on duty."

6. It will be noticed from the
abovesaid regulations that no specific
provision was made for deducting any
amount
from
the
provident
fund
consequent to any misconduct determined
in the departmental enquiry nor was any
provision made for continuance of the
departmental
enquiry
after
superannuation.

7. In view of the absence of such a
provision in the abovesaid regulations, it
must be held that the Corporation had no
legal authority to make any reduction in
the retiral benefits of the appellant. There
is also no provision for conducting a
disciplinary enquiry after retirement of
the appellant and nor any provision
stating that in case misconduct is
established, a deduction could be made
from retiral benefits. Once the appellant
had retired from service on 30.6.95 there
was
no
authority
vested
in
the
Corporation
for
continuing
the
departmental
enquiry
even
for
the
purpose of imposing any reduction in the
retiral benefits payable to the appellant.
In the absence of such an authority, it
must be held that the enquiry had lapsed
and the appellant was entitled to full
retiral benefits on retirement."

7. In the subsequent decision of this
Court in U.P. Coop. Federation case (supra)
on facts, the disciplinary proceeding against
employee was quashed by the High Court
since no opportunity of hearing was given to
him in the inquiry and the management in its
appeal before this Court sought for grant of
liberty to hold a fresh inquiry and this Court
held that charges levelled against the
employee were not minor in nature, and
therefore, it would not be proper to foreclose
the right of the employer to hold a fresh
inquiry only on the ground that the employee
has since retired from the service and
accordingly granted the liberty sought for by
the management.

8. While dealing with the above case,
the earlier decision in Bhagirathi Jena's
976 INDIAN LAW REPORTS ALLAHABAD SERIES
case (supra) was not brought to the notice
of this Court and no contention was
raised pertaining to the provisions under
which the disciplinary proceeding was
initiated and as such no ratio came to be
laid down. In our view the said decision
cannot help the respondents herein.

9. Once the appellant had retired
from service on 31.3.2009, there was no
authority vested with the respondents for
continuing the disciplinary proceeding
even for the purpose of imposing any
reduction in the retiral benefits payable to
the appellant. In the absence of such an
authority it must be held that the enquiry
had lapsed and the appellant was entitled
to get full retiral benefits.

10. The question has also been raised in
the appeal with regard to arrears of salary
and allowances payable to the appellant
during the period of his dismissal and upto
the date of reinstatement. Inasmuch as the
inquiry had lapsed, it is, in our opinion,
obvious that the appellant would have to get
the balance of the emoluments payable to
him.

11. The appeals are, therefore,
allowed and the judgment and order of the
High Court are set aside and the respondents
are directed to pay arrears of salary and
allowances payable to the appellant and also
to pay him his all the retiral benefits in
accordance with the rules and regulations as
if there had been no disciplinary proceeding
or order passed therein."

9. In the present case also the U.P.
Cane Co-operative Federation Employees
Service Regulations, 1975 have been
framed in exercise of powers under
Section 122 of the U.P. Co-operative
Societies Act, 1965. Regulation 69 of the
U.P.
Cane
Co-operative
Service
Regulation, 1975 reads as follows:

"69. At the conclusion of the
disciplinary proceedings, the competent
authority may impose any or more of the
following punishment according to the
nature and gravity of the offence:

(a) Censure.

(b) Withholding the increment or
increments
including
stoppage
in
efficiency bar or promotion.

(c) Reduction to a lower post or
time-scale or to a lower stage in timescale.

(d) Fine.

(e) Recovery from the pay of the
whole or part of the pecuniary loss
caused to the institution or institutions
placed under his charge by his negligence
or breach of orders.

(f) Removal from service.

(g) Dismissal from service.

Note-Dismissal
disqualifies
an
employee from re-employment in the
service."

10. From a perusal of the U.P. Cane
Cooperative Service Regulations, 1975 it
is noticed that there is no provision
similar to or pari materia with Article 351
(A) of the Civil Service Regulations,
which
may
permit
the
respondent
authorities
to
proceed
with
the
disciplinary proceeding against a retired
employee. Therefore, the only conclusion
that can be drawn in the absence of any
such provision is that, once the employee
has
retired
and
the
disciplinary
proceeding have not been concluded, for
whatever
reason,
such
disciplinary
proceedings shall automatically lapse with
the
retirement
of
the
employee.
2 All]. Bhibhuti Narain Singh Vs. Food Corporation of India & Ors.
977

11. In this view of the matter the
impugned orders dated 22.10.2013 and
27.05.2014 cannot survive being illegal
and without jurisdiction and the same are
accordingly quashed.

12. The writ petition is allowed.

13. The respondents are directed to
pay the entire arrears of salary and
allowances payable to the petitioner and
also to pay him all his retirement benefits
in accordance with Rules and Regulations
as if there had been no disciplinary
proceedings or order passed therein.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2014

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Service Single No. 9694 of 2006

Bhibhuti Narain Singh ...Petitioner
Versus
Food Corporation of India & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri T.B. Singh, Sri Sudhir Pandey
Sri Sunil K Singh

Counsel for the Respondents:
Sri Ashutosh Kr. Singh, Shree Chandra
Misra

Constitution
of
India,
Art.-226-Writ
petition-territorial
jurisdiction-order
impugned
passed
at
Chandigarh-even
appeal and mercy petition dismissed at
New Delhi-merely because posted at
Barabanki-disciplinary proceeding initiated
at Lucknow-hence has jurisdiction-held-in
view of law laid down by Full Bench in
Rejendra Kumar Misra case as well as
Supreme Court in Lt. Col. Khajoor Singhpetition before Lucknow Bench , Allahabad
High Court-not maintainable.

Held: Para-15
From the impugned orders, it is noticed
that the chargesheet was issued to the
petitioner on 19.07.1995 when he was
working at Faridkot from the Regional
Office of the Food Corporation of India,
Chandigarh. In the meantime he was
transferred to Lucknow. The appellate
order was passed by the Zonal Manager,
Zonal Office (North), Food Corporation of
India, New Delhi, the review order dated
09.09.2000 was also passed by the
Managing Director, Food Corporation of
India, Headquarters, New Delhi. The
mercy petition of the petitioner was also
rejected by the Chairman for and on
behalf of the Board of Directors, Food
Corporation of India, Headquarters, New
Delhi. The only order which has been
passed within the State of U.P. is the
communication order dated 09.02.2001
passed by the District Manager, Food
Corporation of India, District Office,
Faridkot communicating the appellate
order dated 09.09.2000. Merely because
the order has been communicated to the
petitioner when he was posted as
Assistant
Manager,
Barabanki
or
Lucknow,
U.P.
will
not
confer
any
jurisdiction upon the Lucknow Bench of
the Allahabad High Court. None of the
orders, impugned in the writ petition
have been passed by any authority in
NOIDA or Lucknow within the State of
U.P.
Case Law discussed:
(1995) 6 SCC 634; (2007) 7 SCC 309; AIR
1966 SCC 1313; AIR 1974 296(V.61, C.66);
W.P. No. 6492 of 2010; AIR 1961 SC 532;
2005(5) AWC 4542(FB)

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. The petitioner has filed this writ
petition seeking quashing of the orders
dated 07.10.1998 (Annexure-1 to the writ
petition) passed by the General Manager
(Punjab) Food Corporation of India,