# Raj Pal Singh v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 1064
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-23
- **Case number:** Writ-A No. 42450 of 2011
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-pal-singh-v-state-of-u-p-ors-49775
- **Pages:** 7

## Headnote

A. Service Law - Petitioner was retired from
service after serving as Sub-inspector in
Civil Police-a disciplinary proceeding was
initiated and awarded major punishment
withholding the salary for the period of his
absence from duty-show cause notice
issued and disciplinary authority without
considering the reply of the petitioner and
without recording any finding imposed the
same punishment proposed by Enquiry
officer-Enquiry Officer has no business to
propose the punishment-After the death of
the deceased employee no further or fresh
enquiry may be initiated-It is well settled
law that an administrative/quasi-judicial
order must contain reason in support of the
conclusion and in absence of the reason, the
order become arbitrary.(Para 1 to 21)

The writ petition is allowed. (E-6)

List of cases cited:

## Text

1064 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary for the Court to strike down the
provisions contained in the Rule."

25. The issue in the present case that
in case the petitioner has got a diploma
prior to the date of appointment and not
with the permission of the department
whether still his case shall be covered
under Rule 5(2) of 2014 Rules. The above
interpretation by the Division Bench of this
Court clearly answers the issue. Rule 5(2)
of 2014 Rules has been interpreted by the
Division Bench to the effect that it is not
intended to act as an exclusion in service
candidates who otherwise fulfills the
requirement
of
holding
prescribed
qualification where the qualification had
already been acquired prior to entry in the
service like the petitioner. Accordingly, it
cannot be contended by the respondent
authorities that the petitioner is not having
the requisite qualification or he is not
eligible to be promoted because he has not
obtained the diploma with prior permission
of the department.

26. So far as the argument of learned
Standing Counsel that they did not have
any vacancy for filling 5 percent post quota
for promotion which can be filled up for
grant of promotion to the petitioner is
concerned, this Court has noticed the fact
that in the counter affidavit, it has been
acknowledged by the State that several
illegal promotions have been made under
the aforesaid quota which subsequently
have been cancelled and persons directed to
be reverted have been granted stay orders
from the Court and are working on the
strength of said stay orders. In view of the
admitted position, the respondent cannot be
permitted to perpetuate the the illegality on
the pretext that they don't have any vacancy
under five percent quota.

27. The Hon'ble Apex Court in the
aforesaid judgment in the case of Union of
India Vs. Vijay Kumar (supra), Union of
India Vs. Parul Devnath (supra) and
Govind Chandra Tiriya Vs. Sibaji Charan
Panda (supra) has time and again issued
directions for creation of supernumerary
post for grant of effective relief to the
concerned litigants, after it was found by
the Court that they were wrongly denied
their legal entitlements.

28. Accordingly, in order to balance
the equities, a writ of mandamus is issued
to the respondent authorities to consider the
claim of the petitioner for promotion afresh
after creating a supernumerary post under
five percent quota which shall be adjusted
in future, upon the occurrence of a vacant
post, in the same quota. This exercise shall
be conducted within a period of three
months from the date of receipt of certified
copy of this order.

29. The writ petition is allowed. No
order as to cost.
----------
(2023) 3 ILRA 1064
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 42450 of 2011

Raj Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey

Counsel for the Respondents:
C.S.C.
3 All. Raj Pal Singh Vs. State of U.P. & Ors.
1065
A. Service Law - Petitioner was retired from
service after serving as Sub-inspector in
Civil Police-a disciplinary proceeding was
initiated and awarded major punishment
withholding the salary for the period of his
absence from duty-show cause notice
issued and disciplinary authority without
considering the reply of the petitioner and
without recording any finding imposed the
same punishment proposed by Enquiry
officer-Enquiry Officer has no business to
propose the punishment-After the death of
the deceased employee no further or fresh
enquiry may be initiated-It is well settled
law that an administrative/quasi-judicial
order must contain reason in support of the
conclusion and in absence of the reason, the
order become arbitrary.(Para 1 to 21)

The writ petition is allowed. (E-6)

List of cases cited:
1. St. of U.K. Vs Kharak Singh (2008) 8 SCC 236

2. Surendra Singh Vs St. of U.P.

3. Durgawate Dubey Vs St. of U.P & ors.

4. Raj Kishori Devi Widow (deceased) Vs. St. of
U.P & ors.

5. A.K.S. Rathore (dead) thru LRS Vs U.O.I. &
anr.

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

1. Heard learned counsel for the
petitioner and learned standing counsel for
State- respondents.

2. Present petition has been filed for
quashing the impugned orders dated
04.11.2009, 05.11.2009, 14.10.2020 &
18.04.2011
and
for
payment
of
consequential dues.

3. Counter and rejoinder affidavits
have been exchanged. With the consent of
learned counsel for the parties, writ petition
is being decided at the admission stage
itself.

4. Learned counsel for the petitioner
submitted that during pendency of writ
petition, Raj Pal Singh (husband of
petitioner) died and now petition is being
contested
by
his
wife
after
filing
substitution application, which has been
allowed.

5. He next submitted that husband of
petitioner (Raj Pal Singh) was serving as
Sub Inspector in Civil Police and after
attaining the age of superannuation i.e. 60
years, he was retired from service on
31.05.2009. While, he was posted at
Ramabai Nagar, a disciplinary proceeding
was initiated against him to award major
punishment and also withholding the salary
for the period of his absence from duty.
Pursuant to that, a charge sheet dated
24.10.2008 was served upon husband of
petitioner and he has submitted his reply
dated 13.11.2008 denying all charges.
Ultimately, Enquiry Officer has submitted
enquiry report dated 06.03.2009 against the
husband of petitioner with recommendation
of punishment for withholding salary for
the period of absence and further reversion
to minimum pay scale for one year.

6. Pursuant to enquiry report dated
06.03.2009, two show cause notices dated
27.05.2009 has been issued to husband of
petitioner by Disciplinary Authority, upon
which, he has submitted reply dated
30.05.2009. Disciplinary Authority without
considering the reply of husband of
petitioner and without recording any
finding upon that, has passed impugned
orders dated 04.11.2066 & 05.11.2009
imposing the punishment proposed by
Enquiry Officer. Against the impugned
orders, husband of petitioner has preferred
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal before respondent no. 3, which was
dismissed vide order dated 14.10.2010.
After dismissal of appeal, husband of
petitioner has preferred revision before
respondent no. 2, which was also dismissed
vide order dated 18.04.2011.

7. Learned counsel for the petitioner
submitted that impugned orders are bad on
two grounds.

8. First of all, Enquiry Officer has no
business to propose the punishment and it
is upon the Disciplinary Authority to take
decision after considering the enquiry
report and other material available on
record. In support of his contention, he has
placed reliance upon the judgment of Apex
Court in the matter of State of Uttaranchal
Vs. Kharak Singh; 2008 (8) SCC 236.

9. Secondly, impugned orders are
having no reason and no consideration of
reply of husband of petitioner dated
30.05.2009 of show cause notice dated
27.05.2009. For this, he has taken specific
plea in paragraph 11 of the affidavit filed
along with petition and in the counter
affidavit, there is a very vague denial not
supported with any document. In support of
his contention, he has placed reliance upon
the judgment of this Court in the matter of
Surendra Singh Vs. State of U.P. (Writ A
No. 23290 of 2017) decided on 24.05.2017.

10. He next submitted that after death
of deceased employee (in present case,
husband of petitioner), no further or fresh
enquiry may be initiated. In support of his
contention, he has placed reliance upon the
judgments of this Court in the matters of
Durgawati Dubey Vs. State of U.P. and 3
others (Writ A No. 40057 of 2013) decided
on 8.10.2018, Raj Kishori Devi Widow
(deceased) Vs. State of U.P. and 4 others
(Writ A No. 47122 of 2016) decided on
30.7.2019 and judgment of Apex Court in
the matter of A.K.S. Rathore (dead)
through LRS Vs. Union of India &
another in Civil Appeal No. 7028 of 2022
(arising out of SLP (C) No. 22570 of 2016
decided on 28.9.2022.

11. Sri Govind Narayan Srivastava,
learned
standing
counsel
vehemently
opposed the submissions raised by learned
counsel for the petitioner, but could not
dispute this fact that punishment so given is
as proposed by the Enquiry Officer. He also
could not dispute that impugned orders
have been passed without considering the
reply of petitioner dated 30.05.2009 having
no finding upon that.

12. I have considered the rival
submissions raised by learned counsel for
the parties and perused the record. Last
paragraph of the enquiry report dated
06.03.2009 provides proposed punishment
i.e. withholding salary for the period of
absence and further reversion to minimum
pay scale for one year, which are awarded
to the petitioner. Apex Court in the matter
of Kharak Singh (supra) has considered
this fact and opined that Enquiry Officer
has no authority to make recommendation
for punishment. Relevant paragraphs of the
said judgment are quoted below;

"18. Another infirmity in the report of
the enquiry officer is that he concluded the
enquiry holding that all the charges have
been proved and he recommended for
dismissal of the delinquent from service.
The last paragraph of his report dated 1611-1985 reads as under:

"During the course of above inquiry,
such facts have come into light from which
it is proved that the employee who has
doubtful character and does not obey the
3 All. Raj Pal Singh Vs. State of U.P. & Ors.
1067
order, does not have the right to continue in
the
government
service
and
it
is
recommended to dismiss him from the
service with immediate effect."

(emphasis supplied)

Though there is no specific bar in
offering views by the enquiry officer, in the
case on hand, the enquiry officer exceeded
his limit by saying that the officer has no
right to continue in the government service
and he has to be dismissed from service
with immediate effect.
19. As pointed out above, awarding
appropriate punishment is the exclusive
jurisdiction of the punishing/disciplinary
authority and it depends upon the nature
and gravity of the proved charge/charges
and other attended circumstances. It is
clear from the materials, the officer, who
inspected and noted the shortfall of trees,
himself conducted the enquiry, arrived at a
conclusion holding the charges proved and
also
strongly
recommended
severe
punishment of dismissal from service. The
entire action and the course adopted by the
enquiry officer cannot be accepted and is
contrary to the well-known principles
enunciated by this Court.

13. Apex Court has taken firm view
that Enquiry Committee has no authority to
recommend the punishment.

14. From the perusal of show cause
notice
dated
27.05.2009
and
reply
submitted by the husband of petitioner
dated 30.05.2009, it is apparently clear that
reply so given by the petitioner has not
been considered and straightway impugned
orders have been passed with a one line
observation that reply of petitioner is not
satisfactory. No finding is recorded in
support of that as to why reply is not
satisfactory. This issue has also been
decided by this Court in the matter of
Surendra
Singh
(Supra).
Relevant
paragraphs are being quoted below;

"By the impugned order, the petitioner
has been found guilty and he has been
awarded a censure entry in terms of Rule
4(1)(b)(iv) of the U.P. Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rule, 1991.

It is contended on behalf of the
petitioner that the impugned order is
arbitrary and illegal and it does not
disclose any reason, hence, the order is
liable to be set aside. He further submits
that in response to the show cause notice,
the petitioner has submitted detailed
representation
on
28.04.2016.
The
authority concerned without adverting to
his reply has rejected it by single order that
his reply was found "Asantoshjanak"
(Unsatisfactory). He submits that no reason
has been assigned in the matter, hence, the
order is arbitrary.

I have heard the learned counsel for
the parties.

It is well settled law that an
administrative/quasi judicial order must
contain reason in support of the conclusion
and in absence of the reason, the order
become arbitrary.

The Supreme Court in long line of
decisions
has
settled
the
view
that
recording the reasons is an essential
feature
in
administrative
decision.
Recording the reasons also checks the State
functionaries to act fairly and restrain them
from
arbitrary
exercise
of
their
administrative or quasi judicial power. The
reasons in support of decision must be
cogent and clear, which can demonstrate
that authority concerned has applied his
mind. Reference may be made to the
judgments of Supreme Court in the cases of
Assistant Commissioner, Commercial Tax
Department, Works Contract and Leasing
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. Shukla and Brothers, (2010) 4 SCC
785; Kranti Associates Private Limited Vs.
Masood Ahmed Khan, (2010) 9 SCC 496;
Union of India Vs. Mohan Lal Capoor, AIR
1974 SC 87; S.N. Mukherjee Vs. Union of
India, AIR 1990 SC 1984; Raj Kishore Jha
Vs. State of Bihar, (2003) 11 SCC 519;
Assistant Commissioner, Commercial Tax
Department, Works Contract and Leasing,
Kota Vs. Shukla and Brothers (2010) 4
SCC 785.

In view of the said settled law, I find
that the impugned order which is cryptic
and skeletal, needs to be set aside.
Accordingly, it is set aside.

The matter is remitted to the authority
concerned
to
pass
fresh
order
in
accordance with law, expeditiously.

In view of the fact that from order
itself, it is evident that no reason has been
mention, no useful purpose would be served
to grant time to learned Standing Counsel
to file counter affidavit.

With the aforesaid observation, the
writ petition is disposed of."

15. Court is of the firm view that
recording of reason is an essential feature
in Administrative decisions.

16. Now, coming to the last
submission as to whether a fresh enquiry
can be conducted or not? It is undisputed
that as on date, original petitioner, (husband
of present petitioner before substitution), is
no more. This matter was before this Court
in the matter of Durgawati Dubey (Supra).
Relevant paragraphs are quoted below;

"After going through the judgments
and facts of the case, this Court is of the
view that against a dead person, neither
disciplinary proceeding can be initiated nor
any punishment order can be passed. In the
present case, facts are not disputed that
disciplinary
proceeding
was
initiated
against husband of petitioner after his
death, which suffers from non application
of mind as well as contrary to the law laid
down by this Court as well as other High
Courts, therefore, the impugned order
dated 10.06.2013 is not sustainable and is
hereby quashed.

The writ petition is allowed. No order
as to costs."

17. Court is of the firm view that no
disciplinary proceeding can be initiated
against a dead person. This Court in the
matter of Raj Kishori Devi Widow (supra)
has again taken the similar view. Relevant
paragraphs are being quoted below;

"Learned Single Judge of of this Court
in Rajeshwari Devi Vs. State of U.P. and
others, in the similar facts, held as follows:

"Holding of departmental enquiry and
imposition of punishment contemplates a
pre-requisite condition that the employee
concerned, who is to be proceeded against
and is to be punished, is continuing an
employee, meaning thereby is alive. As
soon as a person dies, he breaks all his
connection with the worldly affairs. It
cannot
be
said
that
the
chain
of
employment would still continue to enable
employer to pass an order, punitive in
nature, against the dead employee...... all
the punishments contemplated under the
rules are such which can be imposed on a
person who is still continuing to be an
employee."

It follows that punishment provided
under the Disciplinary Rules can be
imposed upon the government servant and
not
on
the
family
member
of
the
government servant. As soon as an
incumbent ceases to be a government
servant upon death, no penalty under the
rules could have been imposed upon him.
3 All. Raj Pal Singh Vs. State of U.P. & Ors.
1069
That being so, the question of passing an
order, which may have the effect of
punishing legal heirs of the deceased
employee would not arise. In the facts of
the instant case, disciplinary proceeding
was
initiated
against
the
employee
immediately before his retirement and
before the disciplinary enquiry could
conclude he died. The disciplinary enquiry,
thereafter, could not have been proceeded
under Section 351A of the Civil Service
Regulations, accordingly, the competent
authority dropped the enquiry. By the
impugned order, recovery was sought to be
made from the post retiral dues from the
legal heir for the misdemeanour and
misconduct of the delinquent employee,
which was not permissible in view of Rule
54-B of the Fundamental Rules.

Learned standing counsel, in rebuttal,
does not dispute the fact that the enquiry
was dropped as the employee died and the
enquiry could not be concluded before
death
of
the
employee.
In
the
circumstances, no recovery could have
been made from the post retiral dues
without a finding being recorded against
the deceased/employee under the Rules that
he was responsible for having caused loss
to the government.

The order dated 17 June 2016 passed
by
the
second
respondent-Finance
Controller and Chief Accounts Officer,
Foods and Civil Supplies, Lucknow, is
unsustainable, accordingly, set aside and
quashed.

The recovered sum of the post retiral
dues shall be released to the petitioner by
the second respondent--Finance Controller
and Chief Accounts Officer, Foods and
Civil Supplies, Lucknow, within two months
from the date of filing of certified copy of
this order along with interest @ 7% per
annum on the sum from the date of
recovery.

The writ petition stands allowed.

No Cost."

18. Recently, in the matter of A.K.S.
Rathore (supra), Apex Court has taken a
very clear view that no disciplinary
proceeding can be initiated or continued
against a dead person. Relevant paragraphs
are being quoted below;

"8. Today even if we dismiss the above
appeal, no final order can be passed in the
disciplinary proceedings, against a dead
person. The disciplinary proceedings have
actually abated. In other words the dismissal of the above appeal will have the
same consequences as the appeal being
allowed.

9. In view of the above, the above
appeal is disposed of holding that the
disciplinary proceedings initiated affinst
the original appellant stand abated. As a
consequence, the legal representatives of
the original appellant will be entitled to all
the benefits that the original appellant
would have been entitled to, as per the
rules. The respondents may pass orders in
accordance with the rules, about the
benefits law-fully admissible to the original
appellant and disburse the same within a
period of 12 weeks. There will be no order
as to costs."

19. In the present case, Disciplinary
Authority has given the same punishment,
which was proposed by Enquiry Officer
and further no finding has been recorded
while
passing
the
impugned
orders,
therefore, it is bad in law.

20. Under such facts and circumstances of
the case as well as law discussed herein
above, impugned orders dated 04.11.2009,
05.11.2009, 14.10.2020 & 18.04.2011 are
bad and hereby quashed. Further, as on
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
date, husband of petitioner (employee) is
no more, therefore, matter cannot be
remitted back to the respondents for
passing fresh order and petitioner shall be
entitled for all consequential benefits
permitted under the Rules.

21. Accordingly, petition is allowed.

22. No order as to cots.

23. Respondents are directed to pay
all consequential benefits arising out of
quashing of impugned orders to the
petitioner i.e. wife of Raj Pal Singh within
three months from the date of production of
certified copy of this order.
----------
(2023) 3 ILRA 1070
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 2229 of 2022
With'
Application U/S 482 No. 4627 of 2022

Yogeshwar Sood ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vineet Vikram, Sri Dhirendra Kumar
Srivastava, Sri Hari Krishna Singh, Sri
Imran Ullah

Counsel for the Opposite Parties:
G.A., Sri Bhanu Prakash Verma, Sri Shashi
Kant Shukla, Sri Amarnath Shukla

Criminal Law - Indian Penal Code, 1860 -
Sections 409 & 420 -for offence u/s 420 IPCfraudulent or dishonest intention necessaryApplicant failed to keep their promise to make
payment-no
evidence
for
dishonest
or
fraudulent intention at the time of making
promise-merely breach of promise will not
attract section 420 IPC-sec. 409-Applicants
neither public servant-nor banker or merchant
or broker or attorney or agent-section 409 IPC
not made out-no legal evidence of entrustment
of gold chhatra to the Applicant-except verbal
allegation-proceedings quashed.
Application allowed. (E-9)
List of Cases cited:
1. R.P. Kapur Vs St. of Pun. AIR 1960 SC 866

2. St. of Haryana & ors. Vs Bhajan Lal & ors.
1992 Supp (1) SCC 335

3. M/s Neeharika Infrastructure Pvt. Ltd. Vs St.
of Mah. & ors. AIR (2021) SC 1918

4. Prabhatbhai Aahir @ Parbatbai Bhimsinhbhai
Karmur & ors. Vs St. of Gujarat & anr. (2017) 9
SCC 641

5. Kapil Agarwal & ors. Vs Sanjay Sharma & ors.
(2021) 5 SCC 524

6. Hridaya Ranjan Prasad Verma Vs St. of Bihar
(2000) 4 SCC 168

7. Dalip Kaur Vs Jagnar Singh (2009) 14 SCC
696

8. Anwar Chand Sab Nanadikar Vs St. of Karn.
(2003) 10 SCC 521

9. Vijay Kumar Ghai Vs St. of W. B. (2022) 7
SCC 124

10. Indian Oil Corporation Vs NEPC India Ltd.
(2006) 6 SCC 736
(Delivered by Hon'ble Sameer Jain, J.)

1. Both the Applications U/S 482
Cr.P.C. No. 2229 of 2022 and 4627 of 2022
are connected matters and in both the