# Pancham Ram Yadav v. The U.P. Co-Operative Federation Ltd. & Anr

- **Citation:** (2019) 2 ILRA 1963
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-10-27
- **Case number:** Special Appeal No. 435 of 2008
- **Bench:** Amreshwar Pratap Sahi, Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pancham-ram-yadav-v-the-u-p-co-operative-federation-ltd-anr-44302
- **Pages:** 7

## Headnote

C.S.C., Sri Ram Gopal Tripathi, Sri V.C.
Tripathi.

A. U.P. Co-operative Societies Employees
Service Regulation, 1975- Regulations
84, 85 and U.P. Co-operative Federation
Limited Karamchari Seva Niyamawali,
1980- Rule 83- Regulation 84 and Rule
83 combined together should not allow
the process to remain unfinished-Writ
against the dismissal of appellant from
service was dismissed vide impugned
order
dated
12.11.2007-
Recall
application also dismissed. Referring the
matter to a Larger Bench, the High Court
observed -Regulation 84 should be read
in
a
manner
so
as to
allow the
Disciplinary Authority to impose an
appropriate punishment coupled with a
1964 INDIAN LAW REPORTS ALLAHABAD SERIES
direction to recover the entire financial
loss show caused. (Para 11, 12 & 15)

B. Harmonizing the words "any one" of
the penalties in Regulation 84 with the
words used in Rule 83 of the 1980 Rules,
would be a paradox and against public
policy
and
therefore
such
an
interpretation deserves to be avoided.
 (Para 15)

Special appeal against the judgment and order
dated 12.11.2007, passed by learned Single
Judge in CMWP No. 18891 of 2000. (E-4)
Precedent followed: -

## Text

2 All. Pancham Ram Yadav Vs The U.P. Co-Operative Federation Ltd. & Anr.
1963
dated 19th September, 2016 passed by the
District Judge, Unnao cancelling the
appointment of the appellant-petitioner is
set aside. The petitioner is declared
entitled to be reinstated as Stenographer
Grade III in district judgeship Unnao with
all consequential benefits except the
actual payment of salary for the period he
remained out of employment in pursuance
to the order dated 19th September, 2015."

17. Similar view was taken by the
Division Bench of this Court in the case of
District Judge Azamgarh and another
(supra) . The petitioner is possessing diploma
in
Computer
Application
from
Janta
Computer Education Centre as well as
diploma in Computer Application from
Polytechnic, Chandauli. The diploma obtained
from
Polytechnic
Chandauli
is
under
Government of India. The duration of
diploma obtained from Polytechnic Chandauli
is of more than 80 hours whereas the essential
qualification of having CCC certificate issued
by DOEACC Society (NIETNIT) is 80 hours
basic course of study. The petitioner in reply
to the show cause notice has given full detail
regarding his essential qualification. Since the
petitioner is having a diploma which is higher
qualification than CCC certificate, as such, the
order dated 7.1.2017 terminating his services
is not sustainable.

18. In view of the law laid down by
the Division Bench in the aforesaid two
judgements, I am of the opinion that the
writ petition is liable to be allowed and
the same is allowed. The order dated
07.01.2017 passed by the District Judge
Chandauli (Annexure 16 to the writ
petition) is set aside. The petitioner is
declared entitle to reinstate in the District
Judgeship
of
Chandauli
with
all
consequential benefits except the actual
payment of salary for the period he
remained out of employment pursuant to
order dated 01.07.2017.

19. With the aforesaid observations,
the writ petition is allowed.
----------

(2019)10ILR A 1963

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.10.2017

BEFORE

THE HON'BLE AMRESHWAR PRATAP
SAHI, J.
THE HON'BLE SARAL SRIVASTAVA, J.

Special Appeal No. 435 of 2008

Pancham Ram Yadav
 ...Petitioner-Appellant
Versus
The U.P. Co-Operative Federation
Ltd. & Anr. ...Respondents

Counsel for the Appellant:
Sri Prakash Padia, Sri Chandan Kumar.

Counsel for the Respondents:
C.S.C., Sri Ram Gopal Tripathi, Sri V.C.
Tripathi.

A. U.P. Co-operative Societies Employees
Service Regulation, 1975- Regulations
84, 85 and U.P. Co-operative Federation
Limited Karamchari Seva Niyamawali,
1980- Rule 83- Regulation 84 and Rule
83 combined together should not allow
the process to remain unfinished-Writ
against the dismissal of appellant from
service was dismissed vide impugned
order
dated
12.11.2007-
Recall
application also dismissed. Referring the
matter to a Larger Bench, the High Court
observed -Regulation 84 should be read
in
a
manner
so
as to
allow the
Disciplinary Authority to impose an
appropriate punishment coupled with a
1964 INDIAN LAW REPORTS ALLAHABAD SERIES
direction to recover the entire financial
loss show caused. (Para 11, 12 & 15)

B. Harmonizing the words "any one" of
the penalties in Regulation 84 with the
words used in Rule 83 of the 1980 Rules,
would be a paradox and against public
policy
and
therefore
such
an
interpretation deserves to be avoided.
 (Para 15)

Special appeal against the judgment and order
dated 12.11.2007, passed by learned Single
Judge in CMWP No. 18891 of 2000. (E-4)
Precedent followed: -
1. Satya Narain Mishra Vs Praband Nideshak &
anr., (2002) (1) AWC 582 (Para 4, 6, 7, 8, 9,
10, 15 & 16)
Precedent deferred from: -
1. Virendra Kumar Gupta Vs St. of U.P. & ors.
in Service Bench No. 614 of 2009 decided on
28.07.2015 (Para 6, 7, 9, 13, 15 & 16)
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J. & Hon'ble Saral Srivastava, J.)

1. Heard Sri Chandan Kumar,
learned counsel for the appellant and Sri
Ram Gopal Tripathi, learned counsel for
all the respondents.

2. This appeal prays for setting aside
the judgment dated 12.11.2007 of the
learned Single Judge in Writ Petition
No.18891 of 2000 in so far as it relates to
the present appellant only.

3. The appellant while working as a
Storekeeper in the godown of U.P.
Cooperative
Federation
Limited,
the
respondent herein, is alleged to have been
involved in the illegal removal of 361
bags of Sugar as a result whereof, along
with others, he was also charge-sheeted in
disciplinary proceedings and was called
upon to answer the charges including the
charge of financial loss having been
caused on account of such removal of
bags. The said charges were enquired into
and the appellant was held to be liable for
the said loss and the charges of
misappropriation were stated to have been
proved. As a measure of punishment to
the appellant, on the conclusion of the
enquiry, the appellant was dismissed from
service vide order dated 03.03.2000 and
was also simultaneously saddled with the
recovery of the amount stated to have
been misappropriated as per the charges
that have been found to be proved. An
F.I.R. was also lodged and a criminal case
is being pursued. During investigation
more
than
100
bags
of
the
misappropriated Sugar are stated to have
been recovered.

4. Aggrieved the appellant filed Writ
Petition No.18891 of 2000 that has been
dismissed by the learned Single Judge by
the judgment dated 12.11.2007 holding
that the complicity of the appellant is
established and in the circumstances the
dispensation of the services of the
appellant as well as the recovery of the
pecuniary loss from the appellant has
been upheld. While proceeding to dismiss
the writ petition the learned Single Judge
noticed and followed the judgment of
another learned Single Judge in the case
of Satya Narain Mishra Vs. Prabandh
Nideshak and another 2002(1) AWC,
582.

5. The appellant herein filed a Recall
Application for the said judgment before
the learned Single Judge urging that his
counsel had not been heard. The said
application was rejected vide order dated
21.01.2008, hence this appeal.
2 All. Pancham Ram Yadav Vs The U.P. Co-Operative Federation Ltd. & Anr.
1965

6. Sri Chandan Kumar while
advancing his submissions has urged that
since the correct position of law has not
been noticed by the learned Single Judge,
namely the power to award punishment as
per Regulations 84 and 85 of the U.P. Cooperative Societies Employees Service
Regulation, 1975 therefore the impugned
judgment is vitiated. He submits that the
same Regulations, in a case of almost an
identical set of two punishments having
been awarded simultaneously, a Division
Bench in the case of Virendra Kumar
Gupta Vs. State of U.P. and others in
Service Bench No.614 of 2009 decided
on 28.07.2015 has held that since
Regulation 84 of the Regulations 1975
prevail over and above the U.P. Cooperative Federation Limited Karmchari
Seva Niyamawali, 1980, therefore only
one punishment could have been awarded,
hence, the reliance placed by the learned
Single Judge in the case of Satya Narain
Mishra Vs. Praband Nideshak and
another (Supra) is contrary to law as
considered by the said Division Bench.

7. It may be noticed that the
judgment impugned in the present writ
petition was delivered on 12.11.2007
when the judgment in the case of Satya
Narain Mishra Vs. Praband Nideshak
and another (Supra) was reportedly
prevailing. The Division Bench judgment
in the case of Virendra Kumar Gupta
Vs. State of U.P. and others (Supra) has
been rendered on 28.07.2015 without
noticing the ratio of the judgment of the
learned Single Judge in the case of Satya
Narain Mishra Vs. Praband Nideshak
and another (Supra).

8. Sri Chandan Kumar submits that
the Division Bench judgment being later
in
point
of
time,
delivered
and
interpreting the same Regulation, would
prevail, inasmuch as, this was a direct
case with regard to an employee of U.P.
Co-operative Federation Limited whereas
the judgment rendered by the learned
Single Judge in the case of Satya Narain
Mishra Vs. Praband Nideshak and
another (Supra) was in relation to a Cooperative Bank. He therefore, contends
that the Division Bench judgment having
interpreted the same regulations and being
a later judgment would prevail and would
be binding.

9. Replying to the said submissions
Sri Ram Gopal Tripathi, learned counsel
for the respondents has urged that since
the Division Bench judgment had been
rendered without noticing the ratio of the
judgment in the case of Satya Narain
Mishra Vs. Praband Nideshak and
another (Supra) interpreting the same
regulations, this Court should attempt to
harmonize the provisions of Regulations
84 and 85 of the 1975 Regulations and
Rule 83 of the 1980 Rules referred to
therein. His contention therefore is that
the Division Bench judgment in the case
of Virendra Kumar Gupta Vs. State of
U.P. and others (Supra) which does not
notice the ratio of the judgment in the
case of Satya Narain Mishra Vs.
Praband Nideshak and another (Supra)
should not be applied on the facts of the
present case or alternatively the matter
may require a revisit on the question of
law.

10. We have considered the
submissions raised. In order to appreciate
the aforesaid rival submissions raised it
would be appropriate to extract paragraph
no.13 of the judgment in the case of
Satya Narain Mishra Vs. Praband
Nideshak and another (Supra) :
1966 INDIAN LAW REPORTS ALLAHABAD SERIES

"In case bank employee who is
found to have embezzled the amount the
public policy demands that apart from the
punishment
given
by
departmental
authority, he be held responsible for the
recovery of the pecuniary loss caused by
the employee to the Bank. If an
emmployee is held to be liable to only one
of the punishments, it may become an
incentive to misappropriate or embezzle a
large amount and escape liability of such
misappropriation or embezzlement. The
punishment of reversion or removal or
dismissal on the ground of misconduct
should be with direction of recovery to
make good the loss caused due to such
misconduct. Regulation 84, providing for
penalties and stating that the employee is
liable to be punished by any one of the
penalty has thus to be interpreted to mean
that in case of misappropriation or
embezzlement which is the misconduct on
account of which the employee has been
penalised, the recovery of the amount of
pecuniary loss caused to the bank is
necessary to be coupled with the penalty
effected upon delinquent employee. In
V.K.Bahadur Vs. State Bank of India,
2001 L&IC 935, this Court following the
judgment in State Bank of India Vs.
T.J.Paul, AIR 1999 SC 1994; Kailash
Nath Gupta V. Inquiry Officer : 1997 (1)
AWC 263 (NOC): 1997 ACJ 896, held
that where financial irregularities of
serious nature are found proved against
the bank employee no lenient view should
be taken. A bank runs on public
confidence. A greater integrity and
devotion is required from bank employee
in comparison to employees of other
organizations.
If
the
allegation
of
embezzlement, misappropriation or gross
negligence is found to be established
causing pecuniary loss to the bank on
account of delinquent employee, the
amount of loss must be made good by
him. In the present case, only half of the
doubtful recoveries have been sought to
be made good, and in the circumstances it
is held that imposition of penalty of
reversion along with recovery of the
amount, does not violate Regulation 84 of
the U.P. Co-operative Societies Service
Regulation, 1975."

11. A perusal of the aforesaid view
expressed by the learned Single Judge
would indicate that Regulation 84 came to
be interpreted in a manner which in our
opinion is based on a sound reasoning to
advance the purpose of punishment. It
holds that in a case of misappropriation
and financial embezzlement if, the said
charge is found to be proved then
Regulation 84 should be read in a manner
so as to allow the Disciplinary Authority
to impose an appropriate punishment
coupled with a direction to recover the
entire financial loss show caused.

12. This in our opinion also would
not amount to a double punishment but
would be supplemental to the punishment
awarded to the employee on having found
to
be
indulging
in
financial
misappropriation or causing financial loss
which would be a sound public policy
while interpreting Regulation 84. The
money which is sought to be recovered is
in a sense not an award of punishment but
is to recover something that belonged to
the employer and was an entrustment.

Regulation
84
is
extracted
hereinunder :

"Penalties.--(i)
Without
prejudice to the provisions contained in
any other regulation, an employee who
commits a breach of duty enjoined upon
him or has been convicted for criminal
2 All. Pancham Ram Yadav Vs The U.P. Co-Operative Federation Ltd. & Anr.
1967
offence or an offence under Section 103 of
the Act or does anything prohibited by
these regulations shall be liable to be
punished by any one of the following
penalties :

(a) censure.

(b) withholding of increment.

(c) fine on an employee of
Category IV (peon, chaukidar etc.),

(d)
recovery
from
pay
or
security deposit to compensate in whole
or in part for any pecuniary loss caused
to the Co-operative Society by the
employee's conduct,

(e) reduction in rank or grade
held substantively by the employee,

(f) removal from service, or

(g) dismissal from service."

13. What we find is that the Division
Bench in the case of Virendra Kumar
Gupta Vs. State of U.P. and others
(Supra) while proceeding to interpret the
provision has held that the Rules of 1980
have been framed under the Regulations
of 1975 and therefore, they being
subordinate to Regulation 84, Rule 83 of
the Rules can not be read so as to expand
the meaning of the award of any one
punishment as provided for in Regulation
84. Rule 83 of the 1980 Rules are
extracted hereinunder :-

^^1 fdlh vU; lsok fu;e esa fn;s
x;s micU/kksa ij izfrdwy izHkko Mkys fcuk fdlh
deZpkjh dks tks vius drZO;ksa dk dksbZ mYya?ku
djrk gS ;k n.M vijk/k vf/kfu;e dh /kkjk
103 ds v/khu fdlh vijk/k ds fy;s fl) nks"k
gqvk gS ;k lsok fu;ekoyh }kjk izfrf"k) dksbZ
dk;Z djrk gS] rks mls fuEu 'kkfLr;ksa esa ls ,d
;k vf/kd 'kkfLr;ksa }kjk nf.Mr fd;k tk
ldsxkA

1⁄4d1⁄2 fuUnk]

1⁄4[k1⁄2 osru o`f) ij jksd]

1⁄4x1⁄2 Js.kh 4 ds fdlh deZpkjh
1⁄4pijklh] pkSdhnkj vkfn1⁄2 ij tqekZuk]

1⁄4?k1⁄2 deZpkjh ds vkpj.k }kjk
QsMjs'ku dks gksus okyh fdlh /ku laca/kh {kfr
dks iw.kZr;k vFkok vkaf'kd :i ls {kfriwfrZ djus
ds fy;s osru ;k izfrHkwfr ls olwyh]

1⁄4M-1⁄2 deZpkjh }kjk ekSfyd :i esa /k`r
ij ;k Js.kh esa voufr]

1⁄4p1⁄2 lsok ls gVk;k tkuk] rFkk

1⁄4N1⁄2 lsok ls inP;qr

1⁄421⁄2 n.M ds vkns'k dh izfrfyfi
vfuok;Zr% lEc) deZpkjh dks nh tk;sxh vkSj
deZpkjh ds lsok vfHkys[k esa bl vk'k; dh
izfo"V dh tk;sxhA

1⁄431⁄2 fuUnk djus ds vykok dksbZ Hkh
'kkfLr rc rd vkjksfir ugha dh tk;sxh tc
rd fd deZpkjh ds dkj.k crkus dh uksfVl u
ns nh xbZ gks vkSj ;k rks og fofufnZ"V le; ds
Hkhrj mRrj nsus esa vlQy jgk gks vFkok mRrj
n.M nsus okys vf/kdkjh }kjk vlarks"ktud ik;k
x;k gksA

1⁄441⁄2 1⁄4d1⁄2 vkjksfir deZpkjh dks
leqi;qDr izkf/kdkjh }kjk vijk/k dh xEHkhjrk ds
vuqlkj n.M fd;k tk;sxk%

izfrcU/k ;g gS fd [k.M 1⁄411⁄2 ds
mi[k.M 1⁄4M-1⁄2] 1⁄4p1⁄2 ;k 1⁄4N1⁄2 ds v/khu dksbZ 'kfDr
vuq'kklfud dk;Zokgh fd;s fcuk vkjksfir ugha
dh tk;sxhA

1⁄4[k1⁄2 dksbZ deZpkjh ml izkf/kdkjh ls
ftlds }kjk og fu;qDr fd;k x;k Fkk fHkUu
fdlh izkf/kdkjh }kjk rc rd gVk;k ;k inP;qr
ugha fd;k tk;sxk tc rd fd fu;qDr izkf/kdkjh
us ,sls vizkf/kdkj dk izfrfu/kk;u ,sls vU;
O;fDr ;k izkf/kdkjh dks fyf[kr :i esa igys gh
u dj fn;k gksA

1⁄451⁄2 fu;qDr izkf/kdkjh ;k mlds }kjk
izkf/kd`r O;fDr osru o`f) jksdus dk vkns'k nsrs
le; ml vof/k dk tc rd ds fy;s og jksdh
xbZ gS vkSj bldk fd D;k mlls Hkfo"; dh
osru o`f);ka vFkok inksUufr LFkfxr gksxh]
mYys[k djsxkA**

14. The sum and substance of the
conclusion drawn by the Division Bench
1968 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore is that even though the 1980
Rules does provide for one or more than
one punishment, yet the same can-not
travel beyond the language used in
Regulation 84 of the 1975 Regulations.

15. We are unable to respectfully
agree with the aforesaid interpretation
inasmuch the words "any one" of the
penalties should be harmonized with the
words used in Rule 83 of the 1980 Rules
particularly in cases relating to financial
impropriety
or
embezzlement
as
is
involved in the present case and was also
involved in the case of Satya Narain
Mishra Vs. Praband Nideshak and
another (Supra). We would therefore
approve of the reasoning given by the
learned Single Judge in paragraph no.13
of the judgment in the case of Satya
Narain Mishra Vs. Praband Nideshak
and another (Supra), as against the
interpretation given by the Division
Bench in the case of Virendra Kumar
Gupta Vs. State of U.P. and others
(Supra) in view of the above discussion.
We find that such an interpretation would
advance the cause of justice and would
alienate all possibilities of perpetuation of
any mischief, inasmuch as, an employee
who may be on the verge of his retirement
can take recourse or attempt to such
financial
misappropriation
or
embezzlement and then walk away with
the punishment of dismissal without any
liability to return back the amount. This
would be a paradox and would be against
public policy and therefore such an
interpretation deserves to be avoided. We
may add that an interpretation, the effect
whereof is likely to be utilized by an
unscrupulous employee as an incentive or
license to embezzle, should be cast aside.
Any loophole or possibility of free play
should be prevented from acting as a
catalyst for an indulgent individual. The
purpose of punishment is also to act as a
deterrent. An action, as a consequence of
a proved charge of misappropriation, to
recover, is like a natural corollary that
should be implemented and executed to
complete the process or else it would
invite a legal criticism of letting the guilty
escape. Regulation 84 and Rule 83
combined together should not allow the
process to remain unfinished.

16. Consequently having not found
ourselves in agreement with the ratio of
the judgment of the Division Bench in the
case of Virendra Kumar Gupta Vs.
State of U.P. and others (Supra) in
respect of the subject matter in issue, we
find it necessary to refer this question to a
Larger Bench with a request to Hon'ble
The Chief Justice to constitute a larger
Bench for resolving the question of law
formulated hereinafter :

1. Whether Regulation 84 of
the
U.P.
Co-operative
Societies
Employees' Service Regulation 1975
read with Rule 83 of the U.P. Cooperative
Federation
Limited
Karmchari Seva Niyamawali, 1980
services can be harmonized so as to
uphold the punishment by way of
dismissal of an employee coupled with
an order directing recovery of an
amount on the charge of a financial
embezzlement or misappropriation to
be
included
within
the
fold
of
Regulation 84 ?

2. Whether the law laid down
in the case of Virendra Kumar Gupta
Vs. State of U.P. and others (Supra) in
respect of the true import of Regulation
84 read with Rule 83 aforesaid does not
state the correct position of law as
against the reasoning given by the
2 All. Sunil Kumar Mishra Vs State of U.P. & Ors.
1969
learned Single Judge in paragraph no.13
in the case of Satya Narain Mishra Vs.
Praband Nideshak and another (Supra)
and alternatively as to whether the
statement of law in that regard as
explained in the judgment of Satya Narain
Mishra Vs. Praband Nideshak and
another (Supra) should be accepted as the
correct position of law ?"

17. Let the papers be placed before
Hon'ble The Chief Justice for constituting
a Larger Bench in terms of Chapter V
Rule 6 of Allahabad High Court Rules,
1952 at the earliest for being resolved.
----------

(2019)10ILR A
1969
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Special Appeal No. 743 of 2019 connected
with 744, 745, 595, 599 of 2019

Sunil Kumar Mishra ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Ashok Khare, Abhilasha Singh.

Counsel for the Respondents:
C.S.C., Sri Indra Raj Singh, Sri Vijay
Kumar Singh.

A. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5
of 1982) - Sections 18, 21, 33-A, 33-B - All
the five appeals were dismissed and order
of the Single Judge was upheld-Answering
issue of collateral challenge to regularity
and validity of the appointment while
considering issued related to seniority, it
was held that the issue as regards
existence
of
substantive
vacancy
is
fundamental and, once raised, ought to be
addressed while determining the issue
relating to seniority. (Para 38, 39 & 40)

B. Para 5 of First Removal of Difficulties
Order -the procedure for appointment on
ad hoc basis against a substantively vacant
post is what is laid down in Para 5 of First
Removal of Difficulties Order and that
procedure is mandatory-Any appointment
made in transgression of that procedure is
illegal and void. (Para 46, 47 & 48)

C. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5
of 1982) - Section 18-The provisions
contained in Section 18 and Removal of
Difficulties Order are to be harmonized -
It is incorrect to say that appointment of
a teacher on ad hoc basis is either u/s 18
or under the First Removal of Difficulties
Order. The procedure prescribed in the
First Removal of Difficulties Order for
making ad hoc appointment against a
substantive vacancy was to be followed
for an appointment contemplated u/s 18
and any appointment intransgression
thereof was void. (Para 50, 51 & 52)

D. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5 of
1982)-section 33-B-Paragraph 3 of the
Second Removal of Difficulties Order -
Where short-term vacancy gets converted
into
a
substantive
vacancy
after
07.08.1993,
the
tenure
of
teacher
appointed on ad hoc basis against a shortterm vacancy would be governed by the
provisions of Section 33-B and would not be
governed by Para 3 of the Second Removal
of Difficulties Order. (Para 54 to 61)

Appeal against the judgment and order dated
02.04.2019 passed by Ashwani Kumar Mishra,
J. in W.P. No. 52277 of 2014.

Special appeal dismissed. (E-4)