# R.P. Agnihotri v. U.P.Coop Federation Ltd

- **Citation:** (2019) 4 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-05
- **Case number:** Service Single No. 703 of 1995
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/r-p-agnihotri-v-u-p-coop-federation-ltd-44987
- **Pages:** 7

## Headnote

224 INDIAN LAW REPORTS ALLAHABAD SERIES
Smt. Pushpa Saxena, Sri A.R. Siddiqui, Sri
Abhishek Kumar Pandey, Sri Anil Tewari,
Sri Shireesh Kumar

A. Service/Administrative Law - Natural
Justice Reply to show cause notice - must
be considered by authority - passing major
penalty - procedure with no discussion and
no
opportunity
of
hearing
while
considering
reply
to
show
cause-is
arbitrary-impugned order quashed.

Held - The consideration of the reply to the
show cause notice, in the considered opinion
of the Court, is a must, an exercise without
which the disciplinary authority cannot be said
to have independently applied its mind while
even agreeing with the findings returned by
the Inquiry Officer. (Para 10)

A primary authority that has to pass order of
punishment after considering explanation to
the show cause notice must pen down its own
independent consideration in respect of the
explanation submitted. (Para 12)

Writ Petition allowed. (E-9)

List of cases cited: -

## Text

4 All. R.P. Agnihotri Vs. U.P. Coop Federation Ltd.
223
party
no.
2
cannot
be
put
to
disqualification only because he issued
reminder on 26.11.2013 with respect to
the accused-applicant not having paid the
amount and asking for the same to be
paid. I have already held that the said
reminder was within 17 days, sent to the
applicant instead of the statutorily laiddown period of 30 days.

12. Now, I would like to draw
attention to the proviso to section 142 of
the abovementioned Act which clearly
lays down that the complaint is required
to be submitted within one month from
the date on which cause of action arises.
However, the said complaint can also be
preferred even after the statutory time
period of 30 days, if the complainant
satisfies
the
Court
that
there
was
sufficient cause for not moving the
complaint within the said time limit. This
provision can be interpreted to mean that
the trial court would, after parties have led
evidence before it, judge whether there
was sufficient reasons shown by the
complainant/opposite party no. 2 or not
for having moved the complaint beyond
30 days. In the present case, if the time
period is calculated from the first date of
notice being sent to the accused-applicant
i.e. 21.10.2013, the complaint would
appear to fall beyond 30 days limit but in
that case also the trial court would be
expected to assess the reasons why the
said delay was committed on the basis of
evidence, which would be adduced by the
complainant. However, in the present
case, in my view, I have already held that
the reminder dated 21.10.2013 of the
notice would certainly be treated to be a
date on which the cause of action has
arisen because the same being within 30
days of the information being given by
the bank regarding dishonour of cheque,
therefore, the complaint should be treated
well within time. Therefore, in neither
situation whether the complaint be treated to
have been filed beyond limit of statutory
period or within the limit, the entire matter
has to be decided by the trial court on the
basis of evidence to be led by both the sides
and it would be highly improper to disqualify
the opposite party no. 2 from proceeding
with the complaint only because a technical
flaw is being raised that the cause of action
would be treated to have arisen on the date of
first notice i.e. 21.10.2013.

13. The rulings which have been relied
upon by the learned counsel for the applicant
which have been cited above, do not appear to
deal with this issue as to whether, in case a
reminder notice is issued, date of issuance of
the same could be treated to be the date on
which the of cause of action would be treated
to have arisen.

14. In view of above, I am of the
view that this application deserves to be
dismissed and it is accordingly dismissed.
The interim order, if any stands vacated.
----------
(2019)12 ILR A223

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

Service Single No. 703 of 1995

R.P. Agnihotri ...Petitioner
Versus
U.P.Coop Federation Ltd. ...Respondent

Counsel for the Petitioner:
Sri A.A. Rizvi, Sri H.K. Misra

Counsel for the Respondent:
224 INDIAN LAW REPORTS ALLAHABAD SERIES
Smt. Pushpa Saxena, Sri A.R. Siddiqui, Sri
Abhishek Kumar Pandey, Sri Anil Tewari,
Sri Shireesh Kumar

A. Service/Administrative Law - Natural
Justice Reply to show cause notice - must
be considered by authority - passing major
penalty - procedure with no discussion and
no
opportunity
of
hearing
while
considering
reply
to
show
cause-is
arbitrary-impugned order quashed.

Held - The consideration of the reply to the
show cause notice, in the considered opinion
of the Court, is a must, an exercise without
which the disciplinary authority cannot be said
to have independently applied its mind while
even agreeing with the findings returned by
the Inquiry Officer. (Para 10)

A primary authority that has to pass order of
punishment after considering explanation to
the show cause notice must pen down its own
independent consideration in respect of the
explanation submitted. (Para 12)

Writ Petition allowed. (E-9)

List of cases cited: -

1. State of West Bengal Vs. Atul Krishna Shaw
and another 1991 Supp. (1) SCC 414

2.
Devendra
Bhai
Shankar
Mehta
Vs.
Rameshchandra Vithal Das Sheth (1992) 3 SCC 473

3. State Bank of Bikaner & Jaipur Vs. Nemi
Chand Nalwaya (2011) 4 SCC 584,

4. Managing Director, Ecil, Hyderabad Vs. B.
Karunakar (1993) 4 SCC 727

(Delivered by Hon'ble Ajit Kumar, J.)

1. Sri H.K. Misra, learned counsel for the
petitioner, Sri Shireesh Kumar, learned counsel
for the respondent and perused the record.

2. By means of this petition under
Article 226 of the Constitution, the
petitioner has challenged the order dated
05.09.1994, whereby, the petitioner hasbeen
dismissed from service and has been saddled
with the liability of Rs. 4,46,559/- as a loss
caused to the Corporation.

3. The petitioner has assailed the
order impugned on the ground that though
the petitioner was a Depot Incharge at the
relevant time but the sole liability to
supply and manage coal was of the
Private Company engaged for the said
purpose under the agreement reached
between U.P. Cooperative Federation with
private company namely M/s. Radhe
Vallabh Traders.

4. Briefly stated facts of the case are
that the petitioner, who was Depot Incharge,
was issued with a charge sheet as the coal in
the stock in the open yard was found much
less than the delivery registered in the stock
register resulting in huge loss to the
Corporation. Initially when the charge sheet
was issued, there was a loss mentioned in
the charge no. 1 of Rs. 1.62 lacs and odd
besides other charges regarding negligence
in duty and connivance of the petitioner
with certain elements that have virtually
lifted the material and no intimation in that
regard was made to the respondent
Federation. The petitioner did submit reply
to the charge rejecting the charges and
submitted that he had no such liability,
however, a supplementary charge sheet was
also
issued
subsequently
which
the
petitioner also replied. An inquiry was got
conducted
in
the
matter
with
due
participation of the petitioner in the inquiry.
The material placed before the Inquiry
Officer and the reply of the petitioner
submitted in that regard were duly
considered and the Inquiry Officer in his
ultimate analysis has found all the charges
proved against the petitioner. The petitioner
4 All. R.P. Agnihotri Vs. U.P. Coop Federation Ltd.
225
was thus issued with a show cause notice
dated 18.10.1993 accompanied by the
inquiry report to which the petitioner
submitted a detailed reply/ explanation
again annexing therewith a number of
documents. The
disciplinary
authority
however, did not get convinced with the
reply of the petitioner and agreeing with the
report, held the petitioner guilty in view of
the findings returned by the Inquiry Officer
and imposed the penalty of dismissal from
service with liability to compensate the loss
as well to the extent he was held liable.

5. Assailing the order impugned it
has been vehemently argued on behalf of
the petitioner that the findings returned by
the Inquiry Officer were perverse as no
correct material was placed before the
Inquiry
Officer
and
the
documents
appended with the reply of the petitioner
were not duly considered. It is submitted
that all this had been highlighted in his
reply to the show cause notice dated
30.10.1993 annexing therewith all the
documents in support thereof questioning
the findings returned by the Inquiry
Officer, however, the same has not been
considered by the disciplinary authority
and in three lines it has only recorded that
the reply/ explanation submitted by the
petitioner dated 29.10.1993 was perused
and from the perusal nothing was found
worth for reconsideration. He submits
that the disciplinary authority even while
agreeing with the inquiry report is to
discuss at least the issues that led him to
agree with the findings returned by the
Inquiry Officer and that too after proper
evaluation
of
the
explanation
of
delinquent employee given to the show
cause notice.

6. Per contra learned counsel for the
respondent argued that the findings of fact
have come to be returned in the inquiry
report and therefore, this Court may not
exercise power to review the findings of
the inquiry officer in exercise of power
under Article 226 of the Constitution. It is
submitted that no procedural flaw is
detectible
in
the
conduct
of
the
disciplinary proceedings and therefore, no
interference is warranted.

7. Having heard learned counsels for
the parties and their arguments across the
bar and having perused the record, the
only question that requires determination
is whether there was a valid consideration
of reply of the petitioner submitted to the
show cause notice, by the disciplinary
authority while agreeing with the inquiry
report
and
awarding
the
maximum
punishment of dismissal from service.
The consideration of the reply of the
petitioner therefore, has to be seen in the
light of explanation submitted and the
documents appended therewith.

8. To find an answer to the above
question, it is necessary to go through
reply submitted by the petitioner and the
charges in respect of the which the
findings have been returned by the
Inquiry Officer. The Inquiry Officer in his
ultimate conclusion has held the petitioner
to be seriously guilty of negligence and
that too a deliberate one in discharge of
his duties while looking after the depot
where the stock of the coal was stored and
on verification and inspection was found
much less than the one recorded in the
register at the time of delivery. The
Inquiry Officer has relied upon the
submissions of the respondent Federation
that
the
peons
were
provided
to
delinquent employee to carry out regular
verification of the stock, the unloading of
the material, following the truck which is
226 INDIAN LAW REPORTS ALLAHABAD SERIES
used for carrying the coal and unloading,
the quantity of the same and if the
petitioner has failed to discharge his duty,
no one else can be held to be liable for the
loss of corporation but the petitioner in
the first instance and to that extent he is
guilty.

9. In his reply, the petitioner has
questioned the correctness of the findings
returned by the Inquiry Officer on the
ground that he had written several letters
in the past regarding state of affairs in the
depot and the involvement of the trading
companies M/s. Radhe Vallabh Traders
and even the show cause notice issued to
the company by the corporation in the
past and the documents of such nature had
also been filed by which the permission
was granted by the Senior Manager, Coal
to the other party to lift the coal from the
depot. Further, he has referred to the letter
written by the corporation to M/s. Radhe
Vallabh Traders in which the accounting
of the company was not found to be
proper and the agency was terminated on
that count on 18.10.1985. He has also
brought on record the registered notice
given to M/s. Radhe Vallabh Traders in
past holding guilty for the loss caused to
the Corporation. He has also referred to
the
agreement
bearing
terms
and
conditions entered by the respondent with
Radhe Traders and under which not only
supply of coal was to be done by the
private company but even the company
was to manage stock as well through its
agent. He has also filed certain more
documents in support of his defence and
thus questioned the findings recorded by
the Inquiry Officer.

10. However, from perusal of the
order impugned, it is clearly revealed that
all these above material have not been
looked into by the disciplinary authority
while passing the order. The consideration
of the reply to the show cause notice, in
the considered opinion of the Court, is a
must, an exercise without which the
disciplinary authority cannot be said to
have independently applied its mind while
even agreeing with the findings returned
by the Inquiry Officer. The findings of the
Inquiry Officer can only be questioned by
means of explanation submitted before
the disciplinary authority and obviously
the reason being that while the inquiry is
conducted in presence of delinquent
employee,
the
report
is
submitted
subsequently and so the evaluation of the
reply, oral testimony, if any, has not been
properly done, the opportunity is available
to the delinquent employee to question the
same and if the disciplinary authority does
not consider the explanation by referring
to the points raised in the explanation,
rejection of the same in three lines cannot
be appreciated nor, can be approved of.

11. In the present case, the findings
returned by disciplinary authority while
agreeing with the inquiry report imposing
the order of dismissal from service upon
the petitioner runs like thus:

^^vr,o Jh vfXugks=h }kjk izLrqr
dkj.k crkvks uksfVl ds Li"Vhdj.k fnukad 2910-93
dk
ijh{k.k
fd;k
x;k
ftlds
ijh{k.kksijkUr dksbZ fopkj.kh; rF; ugha ik;k
x;k ftl ij iqu% fopkj fd;k tk;A^^

Thus, the explanation to the show
cause notice submitted by Sri Agnihotri
dated 29.10.1993 was examined and after
examination nothing was found to be
worth for reconsideration.

(Translation by Court)
4 All. R.P. Agnihotri Vs. U.P. Coop Federation Ltd.
227

12. This above finding sans reason
is not sustainable. A primary authority
that has to pass order of punishment after
considering explanation to the show cause
notice
must
pen
down
its
own
independent consideration in respect of
the explanation submitted.

13. Disciplinary authority, therefore,
needs to record reason on its own. An
authority that fails to consider the reply to
show cause notice while dealing with the
procedure of disciplinary proceedings in
the matter of major penalty, is to be held
to have failed to discharge its primary
duty. Such a procedure where there is no
discussion and no opportunity of hearing
by
disciplinary
authority
while
considering the reply to the show cause, is
liable to be rendered as arbitrary one.

14. The doctrine of fairness has
emerged as a bedrock of administrative
decision making process and coupled with
natural justice form due process, the basic
ingredient of rule of law. Whatever is
arbitrary, is against the rule of law and
arbitrariness means an action opposed to
natural law, a concept of justice i.e.
impartial dealing (and taking decision
after) listening to both sides of dispute (P.
Jackson: Natural Justice, 2nd Edn.
1979 115). The authority when required to
act in a procedurally fair manner means it
has to conform to the principles of natural
justice.

15. Mullan in Natural Justice and
Fairness:

".......This
did
not
go
far
enough; the old law relating to natural
justice was too rigidly entrenched. More
importantly,
the
issues
were
now
somewhat more sophisticated, and it was
recognized that it was not a case of all or
nothing. Some decision making functions,
while not requiring full adjudicative
hearings, might nevertheless have usefully
had certain participatory obligations or
perhaps simply an obligation of "proper"
consideration attached to them.

Out of this predicament emerged
the new vocabulary of the duty to act
fairly. This was not in any sense the result
of a growing feeling on the part of the
courts that the time had come to assert a
general review power over the wisdom of
administrative
decision-making,
even
though the subsequent conduct of one of
the principal proponents of procedural
"fairness" review, Lord Denning M.R.,
might suggest that this was indeed the
case. It can best be viewed as a reaction
to a particular problem in a particular
area of judicial review. Hence it is ironic,
though not perhaps surprising, to now see
the
emergence
of
fairness
in
the
substantive law of judicial review as a
standard for judging the merits of
administrative
decision-making........
.
(1982) 27 McGill L.J. 273.

16. Besides above, the order to be
passed by disciplinary authority while
awarding major penalty, must record
cogent and convincing reasons or in other
words the order passed by the disciplinary
authority imposing major penalty, should
be a speaking order. It has been held in
the case of State of West Bengal Vs. Atul
Krishna Shaw and another 1991 Supp.
(1) SCC 414 by the Apex Court that:

"Giving
of
reasons
is
an
essential element of administration of
justice. A right to reason is, therefore, an
indispensable part of sound system of
judicial review. Reasoned decision is not
only for the purpose of showing that the
228 INDIAN LAW REPORTS ALLAHABAD SERIES
citizen is receiving justice, but also a valid
discipline
for
the
Tribunal
itself.
Therefore, statement of reasons is one of
the essentials of justice."

17. In the case of Devendra Bhai
Shankar Mehta Vs. Rameshchandra
Vithal Das Sheth (1992) 3 SCC 473, the
Apex Court has held that the decision of
disciplinary authority must appear to
reflect that such authority was alive to
various aspects of charge and defence
pleaded. In such proceedings while an
ultimate decision is taken of imposing
penalty by the authority, the requirement
of proof must be fulfilled in such
proceedings
and
while
an
ultimate
decision is taken by the authority, it
should appear that the requirement of
proof was fulfilled substantially. In a nut
shell, the disciplinary authority should
view that inquiry officer has taken due
care in meticulously scrutinizing and
analyzing the evidence on record and
materials. Therefore, there must be an
independent application of mind by the
disciplinary authority to the findings of
the inquiry officer. There should be no cut
and paste of the finding of the inquiry
officer by the disciplinary authority or the
appellate authority otherwise, such an
order is liable to be rendered illegal and
such a decision is unsustainable. In the
case of State Bank of Bikaner & Jaipur
Vs. Nemi Chand Nalwaya (2011) 4 SCC
584, the Apex Court has held that where
findings are based on no evidence or there
is an absence of any findings, such an
order is liable to go.

18. In the case of Managing
Director,
Ecil,
Hyderabad
Vs. B.
Karunakar (1993) 4 SCC 727 the court
observed thus:

"The reason why the right to
receive the report of the Inquiry Officer is
considered an essential part of the
reasonable opportunity it the first stage
and also a principle of natural justice is
that the findings recorded by the Inquiry
Officer form an important material before
the disciplinary authority which along
with
the
evidence
is
taken
into
consideration by it to come to its
conclusions. It is difficult to say in
advance, to what extent the said findings
including
the
punishment,
if
any,
recommended
in
the
report
would
influence the disciplinary authority while
drawing its conclusions. The findings
further might have been recorded without
considering the relevant evidence on
record, or by misconstruing it or
unsupported by it. If such a finding is to
be one of the documents to be considered
by
the
disciplinary
authority,
the
principles of natural justice require that
the
employee
should
have
a
fair
opportunity
to
meet,
explain
and
controvert it before he is condemned. It is
the negation of the tenets of justice and a
denial of fair opportunity to the employee
to consider the findings recorded by a
third party like the Inquiry Officer without
giving the employee an opportunity to
reply to it. Although it is true that the
disciplinary authority is supposed to
arrive at its own findings on the basis of
the evidence recorded in the inquiry, it is
also equally true that the disciplinary
authority takes into consideration the
findings recorded by the Inquiry Officer
along with the evidence on record. In the
circumstances, the findings of the Inquiry
Officer
do
constitute
an
important
material before the disciplinary authority
which
is
likely
to
influence
its
conclusions. If the Inquiry Officer were
only to record the evidence and forward
4 All. Pradeep Kumar Vs. State of U.P. & Ors.
229
the same to the disciplinary authority, that
would not constitute any additional
material before the disciplinary authority
of which the delinquent employee has no
knowledge. However, when the Inquiry
Officer goes further and records his
findings, as stated above, which may or
may not be based on the evidence on
record or are contrary to the same or in
ignorance of it, such findings are an
additional material unknown to the
employee but are taken into consideration
by the disciplinary, authority while
arriving at its conclusion. Both the
dictates of the reasonable opportunity as
well as the principles of natural justice,
therefore,
require
that
before
the
disciplinary, authority comes to its own
conclusions, the delinquent employee should
have an opportunity to reply to the Inquiry
Officer's findings. The disciplinary authority
is then required to consider the evidence, the
report of the Inquiry Officer and the
representation of the employee against it."

19. In view of the above, the order
dated 05.09.1994 deserves to be quashed
and matter needs to be revisited by the
disciplinary authority and the order dated
05.09.1994
is
accordingly
hereby
quashed. The matter is remitted to the
disciplinary authority to reconsider the
reply/ explanation of the petitioner dated
29/30.10.1993 and pass order afresh in
accordance with law. Needless to say the
order shall be reasoned and speaking.

20. Writ petition is allowed with the
aforesaid observations and directions with
no order as to costs.
----------

(2019)12 ILR A229

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2019

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 23674 of 2019

Pradeep Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brijesh Kumar Singh

Counsel for the Respondents:
C.S.C., Sri S.K. Upadhyay

A. Service Law - U.P. Intermediate
Education Act, 1921- Post falling under
promotional quota- Petitioner appointed
on direct recruitment basis as Assistant
Clerk - Post cannot be treated as a direct
recruitment post, instead, it be treated
as promotional post.

Held - as the case has been argued
threadbare, the Court proceeds to consider
whether with the promotion of a person
appointed on compassionate ground, the
promotee would be considered a direct recruit.
It is not the case of the petitioner that post of
Head Clerk has been filled in by direct
recruitment rather it is admitted that the post
has been filled in by promotion of Sri Rajiv
Saxena. Thus, it can safely be said that when
the said post of Head Clerk was filled in on
account of promotion of Sri Rajiv Saxena then
the said post would go towards the promotion
quota. Admittedly, the other two posts were
also filled in by promotes leaving two posts
against direct recruit quota. Once it was the
post meant for direct recruitment quota which
was filled in with the promotion of the
petitioner against which complaints were made
and thereafter it was found that the approval
which had been granted to the promotion of
the petitioner against the direct recruitment
post was illegally granted. (Para 12)

Writ Petition dismissed. (E-9)

List of cases cited: -