# Prithvi Nath Misra v. Regional Admn. Committee and others

- **Citation:** (2009) 1 ILRA 21
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-28
- **Case number:** Civil Misc. Writ Petition No. 40506 of 2000
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prithvi-nath-misra-v-regional-admn-committee-and-others-41305
- **Pages:** 7

## Headnote

Sri Hemant Kumar
S.C.
U.P. Primary Agricultural Co-operative
Credit
Societies
Centralised
Services
Regulation
1978-Reg.-59
(1)(a)-
dismissal
of
secretary
of
primary
Agricultural Society by member secretary
without
decision
of
the
D.A.C.-
disciplinary
proceeding
conducted
in
utter violation of principle of natural
justice and contrary to Regulation-heldillegal-dismissal
order
quashed
for
limited
purpose
to
conduct
the
disciplinary proceeding in accordance
with law-from the date of suspension to
reinstatement till conclusion of enquiry
subsistence allowance be given-payment
of salary during these period shall be
subject to decision by the action taken
by the authority.

Held: Para 17

The reply of aforesaid paragraphs of the
writ petition has been given in para 15 of
the counter affidavit but there appears
neither
any
specific
denial
of
the
averments contained in paras 25, 26 and
27 of the writ petition nor any material
has been enclosed in support of fact that
the petitioner was afforded adequate
opportunity to defend his case before the
Inquiry Officer, as such I have no option
but to hold that entire disciplinary
inquiry was held in utter violation of
principles of natural justice embodied
under Regulation 59 (1) (a) of 1978
Regulations, as such could not be acted
upon
by
the
disciplinary
authority.
Further dismissal order was passed on
the basis of show cause notice dated
21.6.1999 sent to the petitioner which
was not accompanied by inquiry report
submitted by Inquiry Officer, as such on
this count also the impugned order of
dismissal of the petitioner from service
dated 5.8.1999 cannot be sustained and
for the same reason the order of
Appellate authority dated 16.6.2000 can
also not be sustained.
Case law discussed:
1997 (3) UPLBEC 1747 to 66, 1997 (3)
UPLBEC 1747, S.C. 647, (1987) 1 SCC 213 :
(AIR 1987 SC 1073, (2003) 2SCC 111 : (AIR
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
2003 SC 511, 2005(4) ESC 2899=2005 ALJ
3721, 2006(4) ALJ-90.

## Text

1 All] Prithvi Nath Misra V. Regional Admn. Committee and others
21
226 of the Constitution of India for
quashing of the FIR, but prior to the
registration of the F.I.R., the prospective
accused has no right to challenge that
order. Therefore, in present case also, the
application moved by the applicants under
section 482 Cr.P.C. to set aside the
impugned order deserves to be rejected.

14. Consequently, the application
under section 482 Cr.P.C. is hereby
rejected.

Let a copy of this order be sent by
the office to the Judicial Magistrate, Court
No. 8, Allahabad, who is directed to
ensure that proper investigation is made
after lodging the F.I.R. in pursuance of
the impugned order dated 12.11.2008
passed by him on application no. 293/XII
of 2008 (Smt. Baby Vs. Abdul Aziz and
other) under section 156(3) Cr.P.C. P.S.
Kareli (Allahabad). Application rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 40506 of 2000

Prithvi Nath Misra

...Petitioner
Versus
Regional
Administrative
Committee,
Uttar Pradesh Primary Agricultural Cooperative
Credit
Societies
Central
Service, Basti & others ...Respondents

Counsel for the Petitioner:
Sri K.M. Misra
Sri Triloki Nath

Counsel for the Respondents:
Sri Hemant Kumar
S.C.
U.P. Primary Agricultural Co-operative
Credit
Societies
Centralised
Services
Regulation
1978-Reg.-59
(1)(a)-
dismissal
of
secretary
of
primary
Agricultural Society by member secretary
without
decision
of
the
D.A.C.-
disciplinary
proceeding
conducted
in
utter violation of principle of natural
justice and contrary to Regulation-heldillegal-dismissal
order
quashed
for
limited
purpose
to
conduct
the
disciplinary proceeding in accordance
with law-from the date of suspension to
reinstatement till conclusion of enquiry
subsistence allowance be given-payment
of salary during these period shall be
subject to decision by the action taken
by the authority.

Held: Para 17

The reply of aforesaid paragraphs of the
writ petition has been given in para 15 of
the counter affidavit but there appears
neither
any
specific
denial
of
the
averments contained in paras 25, 26 and
27 of the writ petition nor any material
has been enclosed in support of fact that
the petitioner was afforded adequate
opportunity to defend his case before the
Inquiry Officer, as such I have no option
but to hold that entire disciplinary
inquiry was held in utter violation of
principles of natural justice embodied
under Regulation 59 (1) (a) of 1978
Regulations, as such could not be acted
upon
by
the
disciplinary
authority.
Further dismissal order was passed on
the basis of show cause notice dated
21.6.1999 sent to the petitioner which
was not accompanied by inquiry report
submitted by Inquiry Officer, as such on
this count also the impugned order of
dismissal of the petitioner from service
dated 5.8.1999 cannot be sustained and
for the same reason the order of
Appellate authority dated 16.6.2000 can
also not be sustained.
Case law discussed:
1997 (3) UPLBEC 1747 to 66, 1997 (3)
UPLBEC 1747, S.C. 647, (1987) 1 SCC 213 :
(AIR 1987 SC 1073, (2003) 2SCC 111 : (AIR
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
2003 SC 511, 2005(4) ESC 2899=2005 ALJ
3721, 2006(4) ALJ-90.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. By this petition, the petitioner has
challenged the orders dated 5.8.1999 and
16.6.2000, contained in Annexures-9 and
11 respectively to the writ petition
whereby the petitioner has been dismissed
from service while working on the post of
Secretary, Sadhan Sahakari Samiti Ltd.,
Madanpur Vikas Khand, Uska Bazar,
District Siddhartha Nagar after holding
disciplinary inquiry against him and
appeal preferred by the petitioner has
been
dismissed
by
Regional
Level
Administrative Committee, U.P. Primary
Agricultural Co-operative Credit Societies
Centralized Service, Basti.

2. The brief facts leading to the case
are that the petitioner was placed under
suspension while working as Secretary in
Sadhan
Sahakari
Samiti,
Madanpur,
District Siddhartha Nagar by Member
Secretary,
District
Administrative
Committee,
Siddhartha
Nagar
on
25.3.1998
in
contemplation
of
disciplinary inquiry. It is stated that an
Inquiry officer was appointed by the
Member Secretary without any decision
of District Administrative Committee to
initiate disciplinary proceeding against the
petitioner. It is further stated that on the
basis of false flimsy allegation District
Administrative Committee, Siddhartha
Nagar in its meeting held on 31.7.1999
decided to dismiss the petitioner from
service. The order of dismissal was
communicated
to
him
by
Member
Secretary vide letter dated 5.8.1999. The
petitioner preferred appeal against the
aforesaid order of dismissal before
Regional
Administrative
Committee
which too has been dismissed, hence this
petition.

3. Heard Sri Triloki Nath, Advocate
for the petitioner and Sri Hemant Kumar,
Advocate for the respondents.

4. Learned counsel for the petitioner
has submitted that the service of petitioner
who was member of U.P. Primary
Agricultural Co-operative Credit Societies
Centralized Service is governed by U.P.
Primary Agriculture Co-operative Credit
Societies Centralized Service Rules-1976,
herein after referred to as Rules-1976 and
U.P. Primary Agricultural Co-operative
Credit
Societies
Centralized
Service
Regulations, 1978 (herein after referred as
Regulations-1978). It is further submitted
that the petitioner was placed under
suspension by the Member Secretary,
District
Administrative
Committee,
Siddhartha Nagar-respondent no.4 on a
report dated 7.1.1998 received from
Assistant
Development
Officer
(Cooperative) Bansi pertaining to Sadhan
Sahakari Samiti, Mau, Harbanspur Block
Birdpur and Sadhan Sahakari Samiti Ltd.,
Madanpur Block Uska Bazar, which was
not
placed
before
the
District
Administrative
Committee
but
the
respondent no.4 acted in undue haste in
issuing the order of suspension without
any
decision
of
the
District
Administrative Committee to initiate
disciplinary
proceeding
against
the
petitioner. It is further submitted that a
Full Bench of this court in Ram Chandra
Pandey Vs. District Administrative
Committee
and
others,
1997
(3)
UPLBEC 1747 to 66, has held that a
member of service can neither be
suspended by Member Secretary, District
Administrative
Committee
nor
any
enquiry officer can be appointed by him
1 All] Prithvi Nath Misra V. Regional Admn. Committee and others
23
in absence of any decision of the District
Administrative Committee to initiate
disciplinary
proceedings
against
the
member of service but in instant case
aforesaid suspension order was passed
without any such decision of District
Administrative
Committee
to
hold
disciplinary inquiry against the petitioner,
which is appointing authority of the
petitioner under rule 13 of the said Rules.

5. It is also submitted that the
inquiry officer was also appointed by
respondent no.4 in gross violation of
Regulation 59(i)(e) of Regulations and
against the view expressed by Full Bench
of this court referred above inasmuch as
charge sheet was issued to the petitioner
without
approval
of
the
District
Administrative
Committee,
which
is
appointing authority of the petitioner and
further entire disciplinary inquiry was
conducted in utter violation of aforesaid
Regulations and principles of natural
justice,
therefore
entire
disciplinary
proceeding is vitiated under law. The
Appellate authority has also ignored the
aforesaid grounds taken by the petitioner,
as such impugned orders passed by the
disciplinary
authority
and
appellate
authority are not sustainable at all.

6. Contrary to it, learned counsel for
the respondents has attempted to justify
impugned orders at the strength of various
averments made in the counter affidavit
filed on behalf of respondents wherein the
averments
contained
in
various
paragraphs of the writ petition have been
refuted and disputed by the contesting
respondents as detailed in the counter
affidavit. However, while replying para
22 and 23 of the writ petition in para 13 of
the counter affidavit it is stated that the
charge sheet containing 26 charges has
been issued to the petitioner on 28.9.1998
after due approval but it was not disclosed
in the said paragraph that by which
authority it was approved.

7. At very outset it is necessary to
point out that order of suspension dated
25.3.1998 has been merged in the order of
dismissal dated 31.7.1999 communicated
to the petitioner on 5.8.1999, therefore,
the same cannot be held to be in existence
so as to enable the court to examine its
validity and correctness of the said order
of suspension as the same has already
been lapsed. However, question remains
to be considered is that as to whether in
given facts and circumstances of the case
the disciplinary inquiry held against the
petitioner is faulted with on account of
alleged illegality in appointing inquiry
officer and further on account of violation
of relevant regulations and principle of
natural justice while holding disciplinary
inquiry against the petitioner.

8. In this connection, it is necessary
to point out that from perusal of the order
of suspension dated 25.3.1998, it is clear
that while passing the order of suspension
the
Member
Secretary,
District
Administrative
Committee
has
also
appointed Addl. District Co-operative
officer as inquiry officer directing him to
hold detail inquiry with regard to the
alleged misconduct of petitioner in
Sadhan Sahakari Samiti, Madanpur, Mau
and Harbanspur and submit inquiry report
and prepare charge sheet against the
petitioner. Thus the order of suspension
cannot be said to be passed by Member
Secretary after any decision taken by the
District Administrative Committee to hold
formal disciplinary inquiry, therefore at
the most order of suspension alone could
be faulted with in view of decision of Full
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Bench of this Court rendered in Ram
Chandra
Pandey
Vs.
District
Administrative Committee and others,
1997 (3) UPLBEC 1747, but in my
considered opinion the aforesaid illegality
in the order of suspension can not vitiate
disciplinary inquiry held against the
petitioner, unless it is otherwise faulted
with because of the simple reason that the
suspension of employee is different from
disciplinary inquiry and suspension has to
be resorted to merely to facilitate the
disciplinary
inquiry
under
certain
contingencies
warranting
such
suspension. It is not that in each and every
circumstances, the suspension of an
employee can be resorted to. In my view
the suspension can not be held to be
concomitant to disciplinary inquiry. It is
always open for the employer to place the
employee under suspension or not while
holding
disciplinary
inquiry
against
employee.

9. Before proceeding further it
would be useful to refer aforesaid Full
Bench decision of this court rendered in
Ram Chandra Pandey's case wherein this
Court in para 15 and 16 of the judgement
has observed as under:-

"15. In all these writ petitions the
Member/Secretary while suspending the
petitioners has appointed Inquiry Officers
to
make
inquiry
into
the
alleged
misconduct of the petitioners and submit
their report. The Member/Secretary can
appoint an Inquiry Officer for conducting
disciplinary inquiry; but he can do so
only after the disciplinary proceeding had
been taken by the District Committee. It is
admitted position in all these cases that
the District Committee has not taken a
decision initiating or contemplating the
disciplinary
proceedings
against
the
petitioners. Under the circumstances, the
Member/Secretary
could
not
have
appointed Inquiry Officers for conducting
inquiry. From the tenor of the impugned
orders,
it
is
apparent
that
the
Member/Secretary while suspending the
petitioners
has
also
initiated
the
disciplinary proceedings. Such a course is
not open to him. That apart, no attempts
have been made by the respondents to
justify the impugned orders by placing the
relevant materials before the Court
inspite of the averments, alleging the
orders to be arbitrary and illegal. The
impugned orders, therefore, cannot be
sustained.
16. Our answer to the questions referred
to before are as under:
(i)
The
Member/Secretary
can
suspend a member of the centralised
service under Regulation 69 (1)(f)(i) in
the absence of a decision of the District
Committee. Similarly, he can suspend a
member under Regulation 59(1)(f)(iii)
without any decision of the District
Committee. But a member of the service
cannot
be
suspended
by
the
Member/Secretary
under
Regulation
59(1)(f)(ii) in the absence of a decision by
the District Committee contemplating or
initiating
disciplinary
inquiry.
The
decisions of this Court taking the view
contrary to what is contained in this
judgement stand over-ruled.
(ii) When the District Assistant
Registrar is himself a Member/Secretary
of the District Committee, he can suspend
a member of the centralised service
without any concurrence of Assistant
Registrar. In such a case the provisions
requiring the prior concurrence of the
Assistant Registrar stand dispensed with.
(iii) The District Committee is fully
competent to suspend a member of the
centralised service.
1 All] Prithvi Nath Misra V. Regional Admn. Committee and others
25
(iv) The Member/Secretary cannot
appoint an Inquiry Officer to conduct the
disciplinary proceedings in the absence of
decision
of
the
District
Committee
initiating
or
contemplating
the
disciplinary proceedings.
(v)
The
impugned
orders
of
suspension are illegal and cannot be
sustained."

10. Now before analyzing said
decision, it would be useful to refer some
decisions of Hon'ble Apex court, wherein
it has been held that a decision is only an
authority for what it actually decides and
not what logically follows from various
observations
made
in
it.
In
this
connection,
reference
of
few
such
decision can be made herein after.

11. In State of Orissa Vs.
Sudhansu Shekhar Misra, A.I.R. 1968
S.C. 647, wherein Hon'ble Apex Court in
para-13 of the decision has observed as
under:

"A decision is only an authority for
what it actually decides. What is of the
essence in a decision is its ratio and not
every observation found therein nor what
logically
follows
from
the
various
observations made in it."

12. In Ambica Quarry Works Vs.
State of Gujarat & others (1987) 1 SCC
213 : (AIR 1987 SC 1073 (vide para 18)
Hon'ble Apex Court observed:--

"The ratio of any decision must be
understood in the background of the facts
of that case. It has been said long time
ago that a case is only an authority for
what it actually decides, and not what
logically follows from it."

13. In Bhavnagar University Vs.
Palitana Sugar Mills PVt. Ltd. (2003)
2SCC 111 : (AIR 2003 SC 511) (vide
para 59), Hon'ble Apex Court observed:--

"It is well settled that a little
difference in facts or additional facts may
make
a
lot
of
difference
in
the
precedential value of a decision."

14. Now applying the law laid by
Hon'ble Apex Court, I am of considered
opinion that Full Bench of this court has
decided only issue of suspension of
member
of
Centralized
Service
in
circumstance under which suspension can
be resorted to. It has nothing to do with
legality
or
otherwise
validity
of
disciplinary proceeding. Therefore, the
aforesaid decision can not be further
stretched to apply in the disciplinary
inquiry held against the petitioner.

15. Now next question arises for
consideration is as to whether entire
disciplinary proceeding held against the
petitioner can be faulted with on account
of alleged illegality in appointment of
inquiry officer? In this connection it is
necessary to point out that from the
records, it transpires that inquiry officer
was not appointed after the decision of
District Administrative Committee to hold
disciplinary inquiry against the petitioner,
contrary
thereto
it
appears
that
member/secretary has appointed inquiry
officer without any decision of District
Administrative
Committee
to
hold
disciplinary inquiry against the petitioner
and charge sheet was also issued without
prior approval of District Administrative
Committee,
but
the
question
for
consideration is that as to whether such
illegality in appointing inquiry officer and
issuing charge sheet in given facts and
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
circumstances of the case would vitiate
further proceeding or it could be ratified
by
the
disciplinary
authority
subsequently? In this connection it is
necessary to point out that since the case
can be decided on other points, therefore,
I do not propose to decide the aforesaid
questions leaving it open to the decided in
appropriate case.

16. Now next question arises for
consideration is that as to whether
disciplinary inquiry held against the
petitioner
is
vitiated
for
want
of
observance of principle of natural justice
and relevant provisions of Regulations? In
this connection, it is necessary to point
out that in paras 25, 26 and 27 of the writ
petition it is stated that notice dated
14.5.1999 was sent to the petitioner to
appear
in
meeting
of
District
Administrative Committee to be held on
22.5.1999, in pursuance thereof when the
petitioner reached to the Cooperative
Bank Ltd., Siddharth Nagar on 22.5.1999,
there was no such meeting on 22.5.1999
and without further intimation to the
petitioner
a
meeting
of
District
Administrative Committee is shown to
have been held on 25.5.1999. It is further
stated that on 25.5.1999 earlier inquiry
officer was changed and Sri Abdul Hasan,
Additional District Cooperative Officer
was appointed as inquiry officer, who has
neither given personal hearing nor given
opportunity to cross-examine any witness
nor any opportunity to the petitioner to
adduce his defence evidence was given
but inquiry officer has submitted inquiry
report without holding any inquiry merely
on the basis of record and ex-parte
version of the department.

17.

The
reply
of
aforesaid
paragraphs of the writ petition has been
given in para 15 of the counter affidavit
but there appears neither any specific
denial of the averments contained in paras
25, 26 and 27 of the writ petition nor any
material has been enclosed in support of
fact that the petitioner was afforded
adequate opportunity to defend his case
before the Inquiry Officer, as such I have
no option but to hold that entire
disciplinary inquiry was held in utter
violation of principles of natural justice
embodied under Regulation 59 (1) (a) of
1978 Regulations, as such could not be
acted upon by the disciplinary authority.
Further dismissal order was passed on the
basis
of
show
cause notice dated
21.6.1999 sent to the petitioner which was
not accompanied by inquiry report
submitted by Inquiry Officer, as such on
this count also the impugned order of
dismissal of the petitioner from service
dated 5.8.1999 cannot be sustained and
for the same reason the order of Appellate
authority dated 16.6.2000 can also not be
sustained.

18. The view taken herein before
also finds support from two recent
decisions of two Division Benches of this
Court rendered in Gopal Chandra Sinha
Vs. State of U.P. and others 2005(4) ESC
2899=2005 ALJ 3721 and Shiv Shanker
Saxena Vs. State of U.P. 2006(4) ALJ-90
wherein this Court, after examining
almost all the relevant case laws on the
subject has decided somewhat similar
issue in quite detail.

19. In view of aforesaid discussion
and observations, the impugned orders
dated 05.08.1999 and 16.06.2000 passed
by disciplinary authority and appellate
authority are quashed. In the result the
petitioner shall be reinstated in service,
but only for the limited purpose of
1 All] Vijay Kumar Yadav V. State of U.P. and others
27
holding disciplinary inquiry against him.
He shall be reinstated within a period of
15 days from the date of production of
certified copy of the order passed by this
Court before competent authority but the
petitioner shall be treated to be under
suspension
during
fresh
disciplinary
inquiry to be held against him.

20. Although I have not expressed
any opinion about the validity of charge
sheet issued to the petitioner on merits but
as abundant caution it would be proper for
the disciplinary authority to issue fresh
charge sheet to the petitioner within a
period of one month from the date of his
reinstatement in service for the purpose of
holding fresh disciplinary inquiry on the
charges already levelled in the charge
sheet of the petitioner. The petitioner shall
be given fresh opportunity to make reply
of the said charge sheet and after
considering the reply of the charge sheet,
in case the disciplinary authority finds it
necessary to hold fresh disciplinary
inquiry against the petitioner it is open for
the authority to proceed further with
disciplinary inquiry and conclude the
same within another period of three
months. It is needless to say that while
holding fresh disciplinary inquiry the
petitioner
shall
be
given
adequate
opportunity of hearing including crossexamination of witnesses to be examined
on behalf of department and adduce his
own defence evidence and witnesses. The
petitioner shall also be paid subsistence
allowances during disciplinary inquiry
admissible to his current pay scale and
salary.

21. In case, the petitioner succeeds
in
disciplinary
inquiry
finally,
the
disciplinary authority shall also pass
appropriate order with regard to the
continuity of service and remuneration
payable to the petitioner from the date of
his
dismissal
to
the
date
of
his
reinstatement
while
concluding
disciplinary inquiry.

22. With the aforesaid observation
and direction, writ petition succeeds and
is allowed to the extent indicated
hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2008

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.23090 of 2008

Vijay Kumar Yadav

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

Counsel for the Petitioner:
Sri Akhilanand Mishra

Counsel for the Respondents:
Sri Ravi Ranjan
S.C.

U.P.
Govt.
Servant
(Disciplined
and
Appeal,
Rules
1999-Rule-9
(4)-
Termination order-passed after giving
charge sheet-after receiving explanation
of the concerned employees-petitioner
got appointed at the age of 14 years by
playing
fraud-vitiated
the
initial
appointment itself-No denial of entry of
date
of
birth
made
in
Transfer
certificate-except the ignorance on the
basis of wrong information given by his
mother-nothing
explained-held-fraud,
misrepresentation vitiate every thingcan not be interfered by writ court.

Held: Para 9