# Prem Kumar Tripathi v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-18
- **Case number:** Writ A No. 19256 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-kumar-tripathi-v-state-of-u-p-ors-51825
- **Pages:** 7

## Headnote

A. Service Law - U.P. Rajya Sahkari Bhumi
Vikas Bank Employees Service Rules, 1976
- U.P. Co-operative Society Employees
Service Regulation, 1975 - Disciplinary
proceeding
-
Punished
ment
-
Rs.
2,74,380/- was directed to be recovered -
Show cause notice was issued after 15
months from the retirement in 2014 -
Reply
was
filed
within
one
month,
however no action was taken & anr. show
cause notice was issued in 2022 - Legality
challenged - Held, in lack of provisions in
rules and regulations, after retirement, no
show
cause
notice
or
departmental
proceeding can be initiated against any
employee - In case a show cause notice
has been issued by the department, duly
replied by the employee and no action has
been taken for a long time, it is not open
for the department to issue another show
cause notice at a very belated stage for
same cause of action after. (Para 15 and
16)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

486 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph 13 and 14, the Court has held
thus:

"13. At the outset, it is to be
noticed that though, in none of the writ
petitions, Rules governing appointment to the
post of Director was under challenge, the
High Court has gone into the validity of the
Rules,
as
amended,
and
held
that
amendments to the Rules were not carried out
by following the Rules, Regulations and Byelaws of the Society. The specific plea of the
respondent authorities in the writ petitions,
that there is no challenge to validity of the
Rules but same has been brushed aside by the
High Court by merely stating that such an
objection is of technical nature. At this stage,
it is relevant to note that such objection raised
should not have been brushed aside by the
High Court by holding that such objection is
of a technical nature. In all these writ
petitions in which common order [H.
Nabachandra Singh v. Union of India, 2017
SCC OnLine Mani 52] is passed by the High
Court, validity of advertisement dated 16-82016 alone was under challenge. We are of
the view that the High Court has committed
an error in going into the validity of the
Rules, in absence of any challenge to the
same. In any event, it was the case of the
respondent
authorities
that
the
Rules
governing appointment were amended by
following the Rules and such amendment
was also approved by the competent
authority, of Ministry of Health & Family
Welfare.

14. Further,
the
fact
of
not
notifying the amended Rules has also been
made basis for grant of relief by the High
Court. In this regard, the High Court has held
that not notifying the amended Rules would
strike at the root of the amendment process of
the recruitment rules, as such, unless such
Rules are notified, the same cannot be
enforced. It appears from the impugned order
itself that it was the specific plea in the
counter-affidavit filed before the High Court
that the said Rules were not framed under
Article 309 of the Constitution of India and
further there is no specific provision in the
Rules, Regulations and Bye-laws of RIMS
for notifying the same. It is true that in a
public institution, rules are required to be
made available, but at the same time not
notifying to public at large cannot be the
ground to invalidate the notification, in the
absence of any provision to that effect in the
Bye-laws of the Society or the Rules and
Regulations framed for recruitment to the
post of Director."

33. Coming to second point as to
whether these five posts would have fallen in
promotion quota, suffice it to say that since
these are lateral positions and the Board of
Governors is vested with power to fill up
within vacancies by direct recruitment
regarding, under rule 6, even if these
vacancies were meant to be filled up by
promotion, the resolutions adopted by the
Board to meet special exigency cannot be
faulted with.

34. Thus, I do not find any good ground
to quash the advertisement in question. Writ
petition fails and is accordingly dismissed
with no order as to cost.
----------
(2024) 4 ILRA 486
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 19256 of 2023

Prem Kumar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
4 All. Prem Kumar Tripathi Vs. State of U.P. & Ors.
487
Counsel for the Petitioner:
Sri Anupam Kulshreshtha, Sri Sanjay Mishra

Counsel for the Respondents:
C.S.C., Sri Chandra Bhan Gupta, Sri Sanjai
Singh

A. Service Law - U.P. Rajya Sahkari Bhumi
Vikas Bank Employees Service Rules, 1976
- U.P. Co-operative Society Employees
Service Regulation, 1975 - Disciplinary
proceeding
-
Punished
ment
-
Rs.
2,74,380/- was directed to be recovered -
Show cause notice was issued after 15
months from the retirement in 2014 -
Reply
was
filed
within
one
month,
however no action was taken & anr. show
cause notice was issued in 2022 - Legality
challenged - Held, in lack of provisions in
rules and regulations, after retirement, no
show
cause
notice
or
departmental
proceeding can be initiated against any
employee - In case a show cause notice
has been issued by the department, duly
replied by the employee and no action has
been taken for a long time, it is not open
for the department to issue another show
cause notice at a very belated stage for
same cause of action after. (Para 15 and
16)

Writ petition allowed. (E-1)

List of Cases cited:

1. Dev Prakash Tewari Vs U.P. Cooperative
Institutional Service Board; (2014) 7 SCC 260,

2. Smt. Luxmi Devi & anr. Vs St. of U.P. & ors.;
2022 (11) ADJ 170

3. Brahamnad Tyagi Vs St. of U.P. & ors.; 2022
(8) ADJ 624

4. U.P. St. Sugar Corp. Ltd. Vs Kamal Swaroop
Tondon; (2008) 2 SCC 41

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Supplementary counter affidavit
filed today be taken on record.

2. Heard Sri Anupam Kulshreshtha,
learned counsel for petitioner, Sri Devesh
Vikram, learned Additional Chief Standing
Counsel for State-respondents and Sri
Chandra Bhan Gupta, learned counsel for
respondent no. 2.

3. Present petition has been filed
seeking following reliefs:-

"a) To issue a writ, order or
direction in the nature of certiorari
quashing the impugned show cause notice
dated 07.11.2014, served by the petitioner
on 25.11.2014 (Annexure No. 1 to the writ
petition) as well as the impugned show
cause notice dated 08.08.2022 (Annexure
No. 4 to the writ petition);

b) To issue a writ, order or
direction in the nature of Mandamus
directing the respondents to drop the
disciplinary proceedings initiate against the
petitioner pursuant to the impugned show
cause
notices
dated
07.11.2014
and
08.08.2022, in view of the fact that the
disciplinary
proceedings
are
not
permissible to be initiated under the
provisions of Uttar Pradesh Rajya Sahkari
Bhumi Vikas Bank Employees Service
Rules,
1976
after
retirement
of
an
employee;

c) To issue a writ, order or
direction in the nature of Mandamus
directing the respondents to pay all postretirement dues, namely; earned leave
encashment, gratuity, security, etc., along
with interest @ 8% per annum accruing to
the petitioner."

4. Brief facts of the case are that
petitioner was working as Assistant Field
Officer in Uttar Pradesh Sahkari Gram
Vikas Bank Ltd. at Bhogaon Branch,
Mainpuri and he was superannuated on
31.07.2013.
488 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned counsel for petitioner
submitted that after retirement of petitioner,
a show cause notice dated 07.11.2014
(served on 25.11.2014) was issued to the
petitioner proposing the punishment of
recovery of Rs. 2,74,380/- from him. The
service of petitioner is governed by Uttar
Pradesh Rajya Sahkari Bhumi Vikas Bank
Employees
Service
Rules,
1976
(hereinafter referred to as, 'Rules, 1976').
Apart from other grounds, in his reply
dated 05.12.2014, petitioner has taken
specific ground that after retirement, no
such show cause notice may be issued as
Rules, 1976 is having no such provisions
for issuance of show cause notice or
departmental proceeding against a retired
employee. After submission of reply, no
action has been taken against the petitioner
by the respondent-Bank. Again, a show
cause notice dated 08.08.2022 i.e. after
around eight years was issued to the
petitioner for recovery of 50% of Rs.
6,47,187/-. Petitioner has replied the same
vide
letters
dated
06.09.2022
&
11.03.2023. In these replies too, petitioner
has taken specific ground that after
retirement, no such show cause notice may
be issued. Pursuant to the show cause
notices dated 07.11.2014 & 08.08.2022, till
date, no decision has been taken and
gratuity has also been paid to the petitioner
retaining the amount of leave encashment
and security. He pointed out that service of
petitioner is not pensionable. In lack of
provisions of Rules, 1976, impugned order
is bad and liable to be set aside. In support
of his contention, he has placed reliance
upon the judgments of Apex Court as well
as this Court in the matters of Dev Prakash
Tewari vs. U.P. Cooperative Institutional
Service Board; (2014) 7 SCC 260, Smt.
Luxmi Devi and another vs. State of U.P.
and
others;
2022
(11)
ADJ
170,
Brahamnad Tyagi vs. State of U.P. and
others; 2022 (8) ADJ 624.

6. Per contra, Sri Chandra Bhan
Gupta, learned counsel for respondentBank submitted that service of petitioner is
governed under the provisions of Uttar
Pradesh Co-operative Society Employees
Service
Regulation,
1975
(hereinafter
referred to as, 'Regulation, 1975'), but he
could not demonstrate any provision in
Regulation,
1975
authorizing
the
respondent-Bank to initiate departmental
proceeding or show cause notice after
retirement. He further submitted in light of
judgment of Apex Court in the matter of
U.P. State Sugar Corp. Ltd. vs. Kamal
Swaroop Tondon; (2008) 2 SCC 41, even
after retirement, show cause notice may be
issued, but he could not dispute that in the
present case, no departmental proceeding
has
ever
been
initiated
against
the
petitioner till his retirement and the
impugned show cause notices are based
upon general inquiry against some other
persons.

7. I have considered rival submissions
advanced by learned counsel for parties and
perused the records as well as judgment
cited above. It is undisputed that in Rules,
1976 as well as Regulation, 1975, there is
no provision for initiating any disciplinary
proceeding or issuing show cause notice
against the employee after retirement. This
fact is also undisputed that against the
petitioner, no inquiry has ever been
instituted till his retirement. Now, by two
show cause notices dated 07.11.2014 &
08.08.2022, direction has been issued to
recover Rs. 2,74,380/- and 50% of Rs.
6,47,187/- from the petitioner. The question
is as to whether, such show cause notices
can be issued to petitioner in absence of
4 All. Prem Kumar Tripathi Vs. State of U.P. & Ors.
489
any
provisions
in
Rules,
1976
and
Regulations, 1975.

8. Learned counsel for petitioner has
placed reliance upon the judgment of Apex
Court in the matter of Dev Prakash Tewari
(Supra). Relevant paragraphs of the said
judgment is quoted below:-

"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. No costs."

9. In the matter of Smt. Luxmi Devi
(Supra), this Court after following the law
laid down by Apex Court in the matter of
Dev Prakash Tewari (Supra), has taken the
same view. Relevant paragraphs of the said
judgment is quoted below:-

"10. This Court has carefully
considered the judgment rendered by the
Supreme Court in Dev Prakash Tewari
(supra) where the Supreme Court had
followed the judgment rendered by it
earlier in Bhagirathi Jena Vs. Orissa State
Financial Corporation [(1999) 3 SCC 666]
where it was held that in the absence of any
provision in the Regulations governing the
service of an employee providing for
continuation of disciplinary proceedings
after retirement, the respondent cannot
continue the disciplinary proceedings after
the employee's superannuation.

11. The State of U.P., no doubt
notified the XXII Amendment to the
Regulations of 1975 but it provided the
date of enforcement as the date of
publication in the Gazette. Publication was
made only on 27.08.2018 in the official
Gazette. Hence, no retrospective operation
can be given to the Regulations and the
Registrar could not have given sanction on
09.02.2021 for initiation of disciplinary
proceedings against the husband of the
petitioner no.1.

12.
This
Court
has
also
considered the Division Bench judgment in
the case of Rajya Krishi Utpadan Mandi
Parishad (supra), while placing reliance
upon the judgment rendered in Bhagirathi
Jena (supra), the Division Bench observed
that the post of contesting respondent being
non pensionable, Article 351-A of Civil
Services Regulation was not applicable.
After the date of superannuation, the
disciplinary proceedings could not go on in
the absence of any specific provision. The
Court also held that contesting respondent
was entitled to interest on the amount
payable to him.

13.
Having
considered
the
judgments rendered by this Court and by
the Supreme Court and the facts as
490 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned in the pleadings on record
regarding which there is no dispute, this
Court is of the considered opinion that the
disciplinary proceedings initiated against
late husband of the petitioner no.1 is
without jurisdiction as he retired on
31.07.2018 much before the amendment in
the
Regulation
was
notified
with
prospective effect.

14. The proceedings initiated
against late Ram Nazar Singh being
without jurisdiction are liable to be quashed
and are quashed. The writ petition is
allowed.

15. Consequential benefits shall
be available to the petitioners. Recovery of
Rs.11,80,363/- from the gratuity and other
services benefits of late Ram Nazar Singh,
if the same has been deducted, shall be
refunded to the petitioners along with 6%
compound interest as had the amount been
deposited in a Bank by the petitioners on its
receipt in time, they would have been
entitled to bank's rate of interest on such
deposit. "

10. I have perused the judgment of
this
Court
passed
in
Brahamnad
Tyagi(Supra). Relevant paragraphs of the
said judgment is quoted below:-

"From perusal of the judgments
of the Apex Court as well as this Court, it is
very much clear that once there is no rule
occupying
the
field
for
disciplinary
proceeding against an employee after
retirement, proceeding so initiated or
continued
after
retirement,
is
not
sustainable as it de-hors the rules and liable
to be set aside.

In the present case too, petitioner
was retired on 30.04.2018 thereafter
disciplinary proceeding was initiated vide
order dated 07.07.2021 and charge sheet
was served upon him on 07.04.2022 i.e.
undisputedly disciplinary proceeding was
initiated after retirement of the petitioner
whereas Regulations 1984 does not provide
any disciplinary proceeding against a
retired employee. Even in case of adoption
of rules applicable to the State Government
employees
under
Regulation
43
of
Regulations 1984, once the service is not
pensionable
under
Regulation
47
of
Regulations 1984, no action can be taken
against him under Article 351-A of CSR or
any other rule adopted by respondents
under Regulation 43 of Regulations 1984.
Therefore,
impugned
order
dated
07.07.2021 and subsequent charge sheet
dated 07.07.2022 are bad in law and liable
to be set aside. "

11. I have also perused the judgment
of Apex Court passed in Kamal Swaroop
Tondon(Supra) relied by Sri Chandra Bhan
Gupta, learned counsel for respondent no.
2. The facts of the case is summarized in
paragraph no. 13 of the said judgment,
which is quoted below:-

"The learned counsel for the
appellant is right when he submitted that
show cause notice was issued to the
respondent-employee on January 13, 2000
when he was very much in service. The
respondent submitted his explanation on
January 15, 2000 which was not found to
be satisfactory. A regular show cause
notice was, therefore, issued by the
Corporation on January 31, 2000 and was
served upon the respondent-employee on
the same day. The notice was also sent by
registered post which was received by the
employee on February 11, 2000. But it is
clear from the documents that show cause
notice was issued and replied. A regular
show cause notice as to departmental
inquiry
was
also
served
upon
the
respondent- employee on the last day of his
4 All. Prem Kumar Tripathi Vs. State of U.P. & Ors.
491
service which was January 31, 2000. In our
opinion, therefore, it could not be said that
the proceedings had been initiated against
the respondent-employee after he retired
from service."

12. Now, Court has expressed its
view in paragraph nos. 28, 29 & 40, which
are also quoted below:-

"If it is so, the appellantCorporation, in our opinion, is right in
submitting that the proceedings could have
been continued after the retirement of the
respondent-employee as far as the financial
loss caused to the Corporation because of
negligence on the part of employee and the
benefit
claimed
by
the
respondentworkman on his terminal benefits.

Strong reliance was placed by the
learned counsel for the respondent on P.V.
Mahadevan v. MD. T.N. Housing Board,
(2005) 6 SCC 636 : JT 2005 (7) SC 417. In
that case, there was inordinate delay of ten
years in initiating departmental proceedings
against an employee. In absence of
convincing explanation by the employer for
such inordinate delay, this Court held that
the proceedings were liable to be quashed.

Considering
the
facts
and
circumstances in their entirety, in our
considered opinion, the High Court was
wrong in holding that the proceedings were
initiated after the respondent retired and
there
was
no
power,
authority
or
jurisdiction with the Corporation to take
any action against the writ-petitioner and in
setting aside the orders passed against him.
In our judgment, proceedings could have
been taken for the recovery of financial loss
suffered by the Corporation due to
negligence and carelessness attributable to
the respondent-employee. The impugned
action, therefore, cannot be said to be
illegal or without jurisdiction and the High
Court was not right in quashing the
proceedings as also the orders issued by the
Corporation.
The
appeal,
therefore,
deserves to be allowed by setting aside the
order of the High Court."

13. From the perusal of judgments
relied upon by learned counsel for
petitioner, it is apparently clear that after
retirement, in case of lack of provisions in
Rules or Regulations, neither departmental
proceeding nor any show cause notice can
be issued for recovery of any amount.
Present case, during the course of service,
no inquiry has even been initiated against
the petitioner fixing the liability.

14. The judgment of Kamal Swaroop
Tondon (Supra) relied by learned counsel
for respondents is based upon entirely
different facts. In that case, show cause
notice
was
issued
to
petitioner
on
13.01.2000 when he was in service, reply
was also submitted on 15.01.2000, which
was not found satisfactory. Thereafter,
regular show cause notice was issued on
31.01.2000 and served upon the employee
on the very same date, therefore, Court was
of the view that proceeding had been
initiated against the employee before his
retirement. So far as present case is
concerned, without any dispute, first and
second show cause notices have been
issued to the petitioner much after his
retirement, therefore, ratio of law of Kamal
Swaroop Tondon (Supra) shall not be
applicable in the present case.

15. Here the case is entirely different
as undisputedly, after 15 months from the
date of retirement, first show cause notice
dated 07.11.2014 has been issued to the
petitioner proposing the punishment of
recovery of Rs. 2,74,380/- and surprisingly,
even after submission of reply of show
492 INDIAN LAW REPORTS ALLAHABAD SERIES
cause notice on 05.12.2014, no action had
been taken by the respondent-Bank. Now,
after around eight years, in the year 2022,
again
a
show
cause
notice
dated
08.08.2022 was issued to the petitioner
directing to submit his reply as to why
50% of Rs. 6,47,187/- may not be
recovered from him, but till date, final
decision has not been taken except
detaining the leave encashment and
security amount.

16. In the light of facts of law
discussed hereinabove, this Court is of
the considered view that in lack of
provisions in rules and regulations, after
retirement, no show cause notice or
departmental proceeding can be initiated
against any employee. Further, in case a
show cause notice has been issued by the
department, duly replied by the employee
and no action has been taken for a long
time, it is not open for the department to
issue another show cause notice at a very
belated stage for same cause of action
after.

17. In the present case, under Rules,
1976 and Regulation, 1975, there is no
provision to issue show cause notice or
initiate
departmental
proceeding
after
retirement, therefore, issuance of show
cause notice in lack of provisions is bad
after retirement. Further, first show cause
notice was issued in the year 2014 and for
the same cause of action, another show
cause notice was issued in the year 2022,
which is also not permissible. Therefore, in
view of aforesaid facts and circumstances,
impugned
show
cause
notices
dated
07.11.2014 and 08.08.2022 are bad and
hereby quashed.

18. With the aforesaid observations,
writ petition is allowed.

19. No order as to costs.

20. Respondents are directed to pay
all post-retirement dues, namely; earned
leave encashment, security, etc., along with
interest @ 7% per annum from due date to
the date of actual payment.
----------
(2024) 4 ILRA 492
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ A No. 20193 of 2023

Shiv Sewak Kashyap ...Petitioner
Versus
Veerendra Singh ...Respondents

Counsel for the Petitioner:
Sri Prakhar Tandon

Counsel for the Respondents:
Sri Deepak Singh, Ms. Shreya Gupta

A. Tenancy Law - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(a) - Release of
premises - Bona fide need claimed - After
the death of applicant/landlord, the heirs
were substituted and application was also
amended by substituting their need for
the shop - Amendment granted at the
appellate stage, how far, would relate
back to the date of filing of the release
application - Held, the reasoning adopted
by the Appellate Authority in reading the
amendment in the release application
retrospectively relying U.P.on the ratio of
the Apex Court's decision reported in 2002
(7) SCC 559 is perfectly justified and does
not suffer from any infirmity - No
illegality
or
perversity
has
been
committed
by
the
learned
Appellate
Authority while passing the order dated
18.10.2023. (Para 9, 20 and 22)