# Ram Krishna Mishra v. State of U.P

- **Citation:** (2025) 5 ILRA 381
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-07
- **Case number:** Writ A No. 362 of 2005
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-krishna-mishra-v-state-of-u-p-53383
- **Pages:** 9

## Headnote

A. Service Law - Termination - Charge of
misconduct - No regular enquiry was
conducted
-
Effect
-
Service
was
terminated on the ground of misconduct,
but without without holding a regular
inquiry or affording opportunity of hearing
to him - Permissibility - Brijesh Kumar's
case relied upon - Held, if any punishment
order is stigmatic or based on some
allegations, the services of an employee
may not be dispensed with without
following the due procedure of law,
therefore,
the
impugned
punishment
orders cannot be sustained in the eyes of
law - High Court refused to remand back
the matter as the petitioner was retired
and there is no Rules empowering the
respondent to proceed after retirement.
(Para 16, 20 and 21)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

5 All. Ram Krishna Mishra Vs. State of U.P.
381
subsequent developments which
have intervened, as are noticed above, we
are not persuaded to grant any relief to the
appellants. The submission of Sri Khare
that a direction be issued to extend EWS
Reservation against unadvertised vacancy,
also cannot be countenanced. This would
be going contrary to the recruitment rules
and may affect rights of other eligible
candidates and shall not be in spirit of
Article 16 of the Constitution of India.

48. In the peculiar facts of the case,
where neither details of EWS candidates
have been obtained by the respondents, nor
such details are available and all vacancies
are otherwise filled, no such omnibus
direction can be issued for extending
reservation to EWS candidates against
unadvertised
vacancies.
Though
for
different reasons, we ultimately come to the
same conclusion as that of learned Single
Judge that the writ petitions are required to
be dismissed.
----------
(2025) 5 ILRA 381
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 362 of 2005

Ram Krishna Mishra ...Petitioner
Versus
State of U.P. ...Respondents

Counsel for the Petitioner:
Pankaj Verma, Abhishek Dwivedi, C.L.
Yadav, Chote Lal yadav, Dinesh Kumar
Tripathi

Counsel for the Respondents:
C.S.C., Ajay Kumar Singh Raj, MA Siddiqui
A. Service Law - Termination - Charge of
misconduct - No regular enquiry was
conducted
-
Effect
-
Service
was
terminated on the ground of misconduct,
but without without holding a regular
inquiry or affording opportunity of hearing
to him - Permissibility - Brijesh Kumar's
case relied upon - Held, if any punishment
order is stigmatic or based on some
allegations, the services of an employee
may not be dispensed with without
following the due procedure of law,
therefore,
the
impugned
punishment
orders cannot be sustained in the eyes of
law - High Court refused to remand back
the matter as the petitioner was retired
and there is no Rules empowering the
respondent to proceed after retirement.
(Para 16, 20 and 21)
Writ petition allowed. (E-1)
List of Cases cited:
1.
Dr.
Vijayakumaran
C.P.V.
Vs
Central
University of Kerala & ors., (2020) 12 SCC 426
2. Civil Appeal No. Nil of 2024 (arising out of
SLP (C) No. 10546 of 2019), U.P. St. Road
Transport Corporation & ors. Vs Brijesh Kumar &
anr., decided on 28.08.2024
3. Dipti Prakash Banerjee Vs Satyendra Nath
Bose National Centre for Basic Sciences,
Calcutta & ors.; (1999) 3 SCC 60;
4. Indra Pal Gupta Vs Managing Committee,
Model Inter College, Thora; (1984) 3 SCC 384;
5. D.K. Yadav Vs J.M.A. Industries Ltd.; (1993)
3 SCC 259;
6. S.B.I.& ors. Vs Palak Modi & anr.; (2013) 3
SCC 607;
7. Shasya Singh Vs St. of U.P. & ors.; 2020 SCC
OnLine All 106'
8. Writ A No. 31358 of 2021; Dr. Prabhanshu
Shrivastava Vs St. of U.P. & ors., decided on
14.11.2024.
9. St. of Uttar Pradesh & anr. Vs Kaushal
Kishore Shukla; (1991) 1 SCC 691;
10. Mohd. Nihal Siddiqui Vs St. of U.P. & ors.;
(2007) 1 UPLBEC 769
382 INDIAN LAW REPORTS ALLAHABAD SERIES
11. St. of Rajasthan & ors. Vs Daya Lal & ors.;
(2011) 2 SCC 429;
12. Smt. Aamina Vs Nagar Palika Parishad,
Pratapgarh & ors.; 2012 (30) LCD 1671
13. Bhagirathi Jena Vs Board of Directors,
O.S.F.C. & ors.; (1999) 3 SCC 666 and Dev
Prakash
14. Tewari Vs Uttar Pradesh Cooperative
Institutional Service Board, Lucknow & ors.;
(2014) 7 SCC 260
(Delivered by Hon'ble Brij Raj Singh, J.)

1. This writ petition has been filed
seeking following reliefs:-

"1) Issue a writ order or
direction in the nature of Certiorari
quashing the impugned orders dated
31.03.2005
and
7.9.2001
passed
by
opposite party no.4, contained as Annexure
No.10-A and 10-B to the writ petition.

11) Issue a writ order or
direction in the nature of Mandamus
commanding the opposite parties to allow
the petitioner to work on his post and to
pay him salary regularly each and every
month whenever the same falls due.

1I1) Issue a writ order or
direction in the nature of Mandamus
commanding the opposite parties to pay or
to cause to pay the entire outstanding of
arrears of salary to the petitioner."

2. The facts giving rise to the
present petition are that petitioner being
eligible has been appointed on the post of
Tax Collector in Nagar Panchayat, Dostpur,
District
Sultanpur
vide
order
dated
14.09.1982 issued by the Sub-Divisional
Magistrate, Kadipur, District Sultanpur,
who was the appointing authority at the
relevant
time,
after
following
due
procedure. In pursuance thereof, petitioner
has been handed over the charge of post of
Tax
Collector
on
15.09.1982.
The
petitioner continued to work till 1999. It is
said that when opposite party no.6 was
elected as Chairman of Nagar Panchayat,
Dostpur, he started harassing the petitioner
and opposite party no.5 in collusion with
opposite party no.6, took over the receipt
books and relevant documents from the
petitioner and stopped the petitioner to
make signature on the attendance register
w.e.f. 09.08.1999. Despite the aforesaid act
of opposite party no.5, the petitioner was
continuously
present
in
office.
In
September, 1999, all the employees of
Nagar Panchayat, Dostpur were sent for
election duty and the petitioner was also
sent for election duty at Primary School-I,
Katsaki Kadipur, District Sultanpur, where
he performed his duties from 29.09.1999 to
30.09.1999
and
from
02.10.1999
to
30.10.1999 and a certificate to this effect
has also been issued by the Presiding
Officer of polling station on 30.10.1999. It
is further alleged that even after completion
of the election duty, neither the petitioner
was allowed to work not he was permitted
to made signature on the attendance
register though the petitioner vehemently
represented his case orally as well as in
written before opposite parties no.4 to 6.
Petitioner had also approached opposite
party no.3, but nothing was done.

3. On 21.12.1999, a show cause
notice was issued by opposite party no.5
requiring the petitioner to file his reply
within three days, to which he submitted
his reply on 10.10.2000. Even thereafter,
neither the petitioner was allowed to work
nor he was permitted to made signature on
the attendance register though he remain
present himself in the office on each and
every day. When nothing was done, the
petitioner filed the present writ petition
with the prayer for a direction to the
opposite parties to allow the petitioner to
5 All. Ram Krishna Mishra Vs. State of U.P.
383
work on his post and to pay him salary
regularly each and every month and also
for payment of outstanding arrears of salary
to the petitioner. This Court vide order
dated 19.01.2005 directed the Chairman,
Nagar Panchayat, Dostpur to consider and
decide the representation of the petitioner
by passing a reasoned and speaking order.
In pursuance of the order of this Court,
opposite party no.6 considered and rejected
the representation of the petitioner vide
order dated 31.03.2005. It is to be noted
that for the first time, opposite parties by
filing counter affidavit on 10.01.2006 have
brought on record the impugned order
dated 07.09.2001, whereby the services of
the petitioner were terminated along with
the order dated 31.03.2005, whereby
representation
of
the
petitioner
in
pursuance to the order passed by this Court
on
19.01.2005
has
been
rejected.
Thereafter,
petitioner
has
moved
an
amendment application (C.M. Application
No.18 of 2023) challenging the orders
dated 07.09.2001 and 31.03.2005, which
was allowed by this Court vide order dated
19.07.2023.

Submission on behalf of petitioner's
counsel

4. Sri Abhishek Dwivedi, learned
counsel for the petitioner has submitted that
petitioner was appointed on the post of Tax
Collector in Nagar Panchayat, Dostpur.
District
Sultanpur
vide
order
dated
14.09.1982 and he was given joining on the
said post on 15.09.1982. The petitioner was
appointed by the appointing authority after
following due procedure. The petitioner
was stopped to sign the attendance register
on 09.08.1999 though he remained present
in the office. The petitioner was issued a
notice on 21.12.1999, wherein it is
mentioned that he was absent from duty
and also some amount was not deposited by
him and he was directed to join the duty.
The petitioner had given reply to the said
notice dated 21.12.1999 vide reply dated
10.10.2000,
which
is
contained
as
Annexure CA-7 to the counter affidavit
filed on 10.01.2006. The petitioner stated in
his reply that he had appeared before the
officer and submitted his joining, but he
was not being allowed to join his services.
He further denied all the charges.

5.
Learned
counsel
for
the
petitioner has drawn the attention of the
Court towards the salary bill, which has
been annexed as CA-12 to the counter
affidavit dated 29.01.2024 filed by opposite
parties no.4 and 5 and submitted that salary
bill itself indicates that petitioner is at serial
no.4 in the pay scale of Rs.325/- i.e. Tax
Collector
and
he
was
holding
the
substantive post. The salary bill was passed
by the competent authority i.e. Executive
Officer, Town Area, Dostpur, District
Sultanpur. It is further submitted by the
learned counsel for the petitioner that
counter affidavit was called in the writ
petition and along with the counter
affidavit dated 10.01.2006, for the first time
the termination order dated 07.09.2001 is
annexed as CA-4. The petitioner was never
served with any written termination order.
The
petitioner,
therefore,
filed
an
amendment application challenging the
termination order dated 07.09.2001 as well
as the order dated 31.03.2005 by which the
representation
of
the
petitioner
was
rejected. Submission is that the impugned
order
dated
31.03.2005
annexed
as
Annexure-10A
clearly
indicates
that
allegation of embezzlement of Rs.10,000/-
of fund has been levelled against the
petitioner and the record indicates that no
departmental
proceedings
were
ever
initiated to arrive at a conclusion whether
384 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner was responsible for such
misconduct. He has further submitted that
the termination order further indicates that
it is a simplicitor order passed behind back
of the petitioner and the same has never
been communicated to the petitioner nor
there is any endorsement that the said
termination order was ever served on the
petitioner. Further, the termination order
does not contain any letter number and it
appears
that
the
Chairman,
Nagar
Panchayat. Dostpur, District Sultanpur has
passed the order whimsically without
adopting the procedure prescribed and a
valuable civil right of the petitioner has
been taken away in a most arbitrary and
illegal manner.

6.
Learned
counsel
for
the
petitioner has further submitted that notices
dated 26.11.1999 and 21.12.1999 issued by
the department indicate that petitioner has
been shown to be absent from duty, but at
the same time, allegation of financial
irregularity has also been levelled against
him. He has also submitted that once the
opposite parties have come up with a case
that petitioner was not only absent from
duty, but he was also involved in
embezzlement of some amount, it was
incumbent upon the opposite parties to
proceed
departmentally
against
the
petitioner, but no such procedure was
adopted. The opposite parties could not
have terminated the services of the
petitioner
without
initiating
any
departmental proceedings against him.
Submission is that the impugned order
indicates that petitioner has been charged
for embezzlement of Rs.10,000/-, therefore,
the reason for termination is obviously
stigmatic and once there is stigma against
the petitioner, then the same should have
been enquired by the department by
following the procedure prescribed for the
same. Similarly, the termination order
dated 07.09.2001 is also a sham document
because it does not indicate that the same
was addressed to the petitioner or it was
received by the petitioner. Further, the
impugned termination order does not
contain any letter number, therefore, it
appears to be a whimsical order.

7. In support of his contention,
counsel for petitioner has placed reliance
upon the following judgements:-

 1. Dr. Vijayakumaran C.P.V. Vs.
Central University of Kerala and others,
(2020) 12 SCC 426;

2. Civil Appeal No.Nil of 2024
(arising out of SLP (C) No.10546 of 2019),
U.P. State Road Transport Corporation
and others Vs. Brijesh Kumar and
another, decided on 28.08.2024;

3. Dipti Prakash Banerjee Vs.
Satyendra Nath Bose National Centre for
Basic Sciences, Calcutta and others,
(1999) 3 SCC 60;

4.
Indra
Pal
Gupta
Vs.
Managing
Committee,
Model
Inter
College, Thora, (1984) 3 SCC 384;

5.
D.K.
Yadav
Vs.
J.M.A.
Industries Ltd., (1993) 3 SCC 259;

6. State Bank of India and
others Vs Palak Modi and another, (2013)
3 SCC 607;

7. Shasya Singh Vs. State of U.P.
and others, 2020 SCC OnLine All 106'

8. Writ-A No.31358 of 2021, Dr.
Prabhanshu Shrivastava Vs. State of U.P.
and others, decided on 14.11.2024.

Submission on behalf of counsel for
opposite parties no.4 and 5

8. On the other hand, Sri Ajay
Kumar
Singh
Raj,
learned
counsel
appearing for opposite parties no.4 and 5
5 All. Ram Krishna Mishra Vs. State of U.P.
385
has taken a stand in paragraphs 4 and 5 of
the counter affidavit filed on 29.01.2024
that only one post of Clerk/Tax Collector, 4
posts of Watchman-cum-Peon and 5 posts
of Sweeper are sanctioned by the State
Government. One Mohiuddin Ansari was
appointed on the post of Clerk in the year
1974, who is working regularly and he
attained the age of superannuation on the
post of Clerk on 30.04.2014. It has further
been mentioned that the post of Clerk/Tax
Collector was not vacant. The Deputy
Collector, Tehsil Kadipur has appointed the
petitioner temporarily and he was absent
from duty for many times during his past
services. The petitioner was absent from
duty since 09.08.1999 and he was issued a
notice on 24.10.1999 and 26.11.1999, but
he did not turn up. Thereafter, notice was
again
issued
to
the
petitioner
on
21.12.1999.
However,
the
petitioner
submitted his belated reply on 10.10.2000
and did not join the duty. He also did not
deposit the amount of Rs.10,000/-. The
notice was published in daily newspaper
"Aaj" on 12.08.2001 and fifteen days time
was provided to the petitioner to join the
office, but he did not join the duties. After
considering the material on record, the
Chairman,
Nagar Panchayat,
Dostpur,
District Sultanpur passed the impugned
order on 07.09.2001, by which the services
of the petitioner were terminated. It has
further been submitted that since the
petitioner was absent from 09.08.1999,
therefore, final decision was taken by
terminating his services vide order dated
07.09.2001 by the competent authority after
following due procedure, therefore, there is
no illegality or infirmity in the same.

9. In support of his contention,
counsel for opposite parties no.4 and 5 has
placed
reliance
upon
the
following
judgements:-

1. State of Uttar Pradesh and
another Vs. Kaushal Kishore Shukla,
(1991) 1 SCC 691;

2. Mohd. Nihal Siddiqui Vs.
State of U.P. and others, (2007) 1
UPLBEC 769

3. State of Rajasthan and others
Vs. Daya Lal and others, (2011) 2 SCC
429;

10. In rejoinder, the petitioner has
taken a stand in paragraph-6 of the
rejoinder affidavit filed on 14.02.2025 that
petitioner
has
been
appointed
on
14.09.1982 on the post of Tax Collector in
the pay scale of Rs.117-224/- in Town
Area, Dostpur. After appointment, the
approval was sought from the office of the
District Magistrate and then the petitioner
was appointed. One Mohiuddin Ansari was
appointed on the post of Clerk in the year
1974 and he was not the Tax Collector.
Counsel for the petitioner has further
invited the attention of the Court towards
the salary bill annexed as CA-12 to the
counter affidavit filed on 29.01.2024,
which
indicates
that
at
serial
no.3
Mohiuddin Ansari is holding the post of
Clerk in the pay scale of Rs.381/-, whereas
the petitioner is holding the post of Tax
Collector in the pay scale of Rs.325/-
which is a different pay scale. He has
further submitted that petitioner continued
on the post of Tax Collector from 1982 till
09.08.1999 and was paid all the allowances
admissible to the Tax Collector with
consequential service benefits. He has,
therefore, submitted that submission of
counsel for opposite parties no.4 and 5 is
contrary to the record as after looking into
the salary bill of the petitioner, it is evident
that the post of Tax Collector was not filled
up by Mohiuddin Ansari rather he was a
Clerk and the petitioner was holding a
permanent post of Tax Collector.
386 INDIAN LAW REPORTS ALLAHABAD SERIES
Submission on behalf of learned
Standing Counsel

11. Sri Sudhir Singh, learned
Standing
Counsel
has
adopted
the
arguments advanced by the counsel for
opposite parties no.4 and 5 and has
submitted that since the impugned orders
have been passed after following the due
procedure and considering the entire
material
available
on
record,
no
interference is required by this Court.

12. Heard Sri Abhishek Dwivedi,
learned counsel for the petitioner, Sri
Sudhir Singh, learned Standing Counsel for
the State-opposite parties and Sri Ajay
Kumar Singh Raj, learned counsel for
opposite parties no.4 and 5.

Analysis

13. After going through the record
and the two impugned orders, it is apparent
on the face of record that the impugned
order dated 31.03.2005 is stigmatic in
nature. Details have been mentioned in the
order dated 31.03.2005 that petitioner
embezzled Rs.10,000/- and did not deposit
the same, however, the opposite parties
have not issued any charge sheet to the
petitioner. Even the petitioner was absent
from duty, it is settled law that if a
delinquent employee does not appear in the
office, then ex-parte proceedings can be
conducted (Smt. Aamina Vs. Nagar Palika
Parishad, Pratapgarh and others, 2012
(30) LCD 1671), but in the present case, no
such proceedings have been done and the
simplicitor
termination
order
dated
07.09.2001 has been passed behind back of
the petitioner. Apparently, two charges
were mentioned against the petitioner;
firstly he has been held to be responsible
for embezzlement of Rs.10,000/- and the
other charge is that he was absent from
duty since 09.08.1999. There is no doubt
that
the
appointing
authority
was
influenced by the misconduct of the
petitioner and that is why he terminated the
services of the petitioner. Once any
misconduct is committed by the petitioner,
certainly it was required to be enquired by
the opposite parties by following the due
procedure, but in the present case, no such
procedure was adopted which is evident
after looking into the impugned orders
dated 07.09.2001 and 31.03.2005.

14. Submission of counsel for
opposite parties no.4 and 5 that petitioner
was not holding a permanent post, is also
not sustainable as the salary bill annexed as
CA-12 to the counter affidavit dated
29.01.2024 itself indicates that petitioner is
at serial no.4 in the pay scale of Rs.325/-
i.e. Tax Collector and he was holding the
substantive post. The salary was passed by
the competent authority i.e. Executive
Officer, Town Area, Dostpur, District
Sultanpur, whereas one Mohiuddin Ansari
was holding the post of Clerk in the pay
scale of Rs.381/-, thus, the stand taken by
the counsel for opposite parties no.4 and 5
is not tenable on the face of record. The
appointment letter issued by the competent
authority, which is annexed along with the
counter affidavit, is also indicative of the
fact that petitioner was appointed on the
post of Tax Collector. The petitioner
continued his service from 1982 to
09.08.1999 i.e. more than seventeen years
and was getting all consequential benefits
as a regular employee. The impugned
termination order dated 07.09.2001 further
recites that post of the petitioner will be
filled up by inviting applications through
advertisement, thus it is admission by
opposite parties no.4 and 5 that there is a
post of Tax Collector in their office.
5 All. Ram Krishna Mishra Vs. State of U.P.
387
15. It is also to be noted here that
petitioner had replied to the notice dated
21.12.1999
on
10.10.2000,
which
is
admitted by the opposite parties. In the
reply, the petitioner had stated that he was
present in the office on many dates to join
his duties, but he was not allowed to join
the duties. The said letter was also received
in the office of the Nagar Panchayat,
Dostpur, but the Nagar Panchayat was
silent on it. It was incumbent upon the
opposite parties to take a decision in
respect of the said reply dated 10.10.2000
immediately
and
they
could
have
proceeded against the petitioner in case
there was any embezzlement or he was
absent from duty, but the impugned order
has been passed on 07.09.2001 by way of a
simplicitor order, which indicates that the
appointing authority was influenced by the
misconduct of the petitioner on two
grounds; firstly absence from duty and
secondly of embezzlement of Rs.10,000/-.
The misconduct regarding embezzlement is
a serious charge which was certainly to be
enquired by the department, for which
charge sheet was to be issued, but
admittedly
without
following
due
procedure for imposing a penalty, a
simplicitor termination order has been
passed against the petitioner, who was
working on the post for the last more than
seventeen years. If it is found that the basis
of termination of services is stigmatic, then
certainly the Court will unveil the same. In
the present case, after looking into the reply
of the petitioner dated 10.10.2000, it is
evident that the Nagar Panchayat, Dostpur
was
sleeping
over
the
matter
and
termination order dated 07.09.2001 was
also passed behind the back of the
petitioner
without
adopting
the
due
procedure for awarding the punishment.
Impugned order dated 31.03.2005 indicates
the charge of embezzlement of Rs.10,000/-
against the petitioner coupled with the
charge of absence from duty, but the Nagar
Panchayat, Dostpur acted in an illegal
manner while terminating the services of
the petitioner by passing a simplicitor order
without following the due procedure.

16. In the case of Brijesh Kumar
and others (supra), Hon'ble Supreme
Court while dealing with the similar issue,
has held that if the termination of services
of an employee is on the ground of
misconduct, the same has to be done only
after holding a regular inquiry or affording
opportunity of hearing to him, without
which it amounts to stigmatic in nature.
The relevant paragraph is extracted herein
below:-

"19.
The
services
of
the
respondent have been determined solely on
the ground of misconduct as alleged but
without holding any regular inquiry or
affording any opportunity of hearing to
him. The termination order has been
passed on the basis of some report which
probably was not even supplied to the
respondent. No show cause notice appears
to have been issued to the respondent.
Therefore, the order of termination of his
services, even if on contractual basis, has
been passed on account of alleged
misconduct
without
following
the
Principles
of
Natural
Justice.
The
termination order is apparently stigmatic in
nature which could not have been passed
without following the Principles of Natural
Justice."

17.
In
the
case
of
Dr.
Vijayakumaran C.P.V. (supra), Hon'ble
Supreme Court after considering the facts
of that case, set aside the order of
termination on the ground that since the
impugned termination of is illegal being ex
388 INDIAN LAW REPORTS ALLAHABAD SERIES
facie stigmatic as it has been issued without
subjecting the appellant of that case to a
regular enquiry as per the service rules. In
the present case also, the same is the
situation.

18. A coordinate Bench of this
Court while dealing with the issue in
question in the case of Shasya Singh
(supra) held as under:-

" 10. The Hon'ble Apex Court in
re: Parshotam Lal Dhingra vs Union of
India reported in 1958 AIR 36, 1958 SCR
828 has held the stigmatic termination
order may not be passed without affording
an opportunity of hearing to an employee if
the order entails civil consequences could
not have been passed without affording an
opportunity of hearing to an employee.
Apex Court in the case of High Court of
Gujarat
Vs.
Jayshree
Chamanlal
Budhhabhatt, 2013 (16) SCC 59, has taken
the view that once any allegations are
made against the incumbent concerned,
which results in stigma, the minimum
requirement is to inform the concern
person, the charge against him, and to give
him reasonable opportunity of being heard.
Apex Court in the case of SBI Vs. Palak
Modi, 2013 (3) SCC 607, has considered
the issue of termination simplicitor or
punitive termination. Mention has been
made that if misconduct /misdemeanor
constitutes the basis of final decision taken
by competent authority to dispense with the
services of an incumbent albeit by a nonstigmatic order, the Court can lift the veil
and declare that in the garb of termination
simplicitor, the employer has punished the
employee for misconduct.

................

13. Be that as it may, since the
appointing authority are not satisfied with
the conduct of the petitioner as being
reflected in the impugned orders and the
instruction letter and the recital to that
effect has also been given in the impugned
order, therefore, a proper departmental
inquiry strictly in accordance with law
should have been conducted and concluded
against the petitioner to that effect if it is so
warranted
and
after
providing
an
opportunity of hearing to the petitioner any
appropriate order can be passed. Any
appropriate order can be passed only by
the disciplinary authority independently
and such order may not be passed pursuant
to the direction being passed by the
superior authority."

19. In the case of Daya Lal (supra),
it is to be noted that the said case is
pertaining to the employees working on
contract basis in aided hostels. Similarly, in
the case of Kaushal Kishore Shukla
(supra), it is to be seen that termination of
ad hoc or temporary government servant on
assessment of suitability on consideration
of adverse entry and preliminary enquiry is
held to be valid and not to be punitive.
Likewise, Mohd. Nihal Siddiqui (supra) is
a case where temporary employee in terms
of appointment letter was terminated,
therefore, it did not cast stigma, for which
opportunity of hearing was required. Thus,
the aforesaid three judgements relied by
counsel for opposite parties no.4 and 5 are
not applicable to the facts of the present
case. In the present case, it is relevant to be
seen that the petitioner was appointed on
the post of Tax Collector after following
the due procedure and duly approved by the
authority concerned and was working for
more than seventeen years.

Finding:

20. Since it is a trite law that if any
punishment order is stigmatic or based on
5 All. State of U.P. & Ors. Vs. Chandra Mohan Yadav
389
some allegations, the services of an
employee may not be dispensed with
without following the due procedure of
law, therefore, the impugned punishment
orders cannot be sustained in the eyes of
law and are liable to be quashed.

21. The petitioner is around 70
years at the moment and he had attained the
age of superannuation prior to ten years.
Learned counsel for opposite parties no.4
and 5 is unable to point out any Rule which
empowers the opposite parties to proceed
against the petitioner after retirement.
Therefore, it would not be appropriate to
remit the matter for fresh enquiry in view
of the law laid down by the Hon'ble
Supreme Court in the cases of Bhagirathi
Jena Vs. Board of Directors, O.S.F.C. and
others, (1999) 3 SCC 666 and Dev Prakash
Tewari Vs. Uttar Pradesh Cooperative
Institutional Service Board, Lucknow and
others, (2014) 7 SCC 260.

22. Writ petition is accordingly
allowed and a Writ in the nature of
Certiorari is issued quashing the impugned
orders dated 07.09.2001 and 31.03.2005
passed by the Chairman, Nagar Panchayat.
Dostpur, District Sultanpur, contained in
Annexure Nos.10-A and 10-B to the writ
petition. The petitioner is entitled for 30%
back
wages
and
retiral
benefits
as
permissible in law.

23. Since the petitioner has been
litigating from 2005 and has retired, it
would be expedient in the interest of justice
to direct the opposite parties to complete
the exercise for payment of 30% back
wages and retiral benefits to the petitioner,
positively, within a period of three months
from the date a certified copy of this order
is produced before the authority concerned.
----------
(2025) 5 ILRA 389
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2025

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Special Appeal No. 607 of 2024
With
Other connected cases

State of U.P. & Ors. ...Appellants
Versus
Chandra Mohan Yadav ...Respondent

Counsel for the Appellants:
Ankit Gaur, Kunal Ravi Singh

Counsel for the Respondents:
Bhagwan Dutt Pandey

A. Service Law - UP Palika (Centralized)
Services Rules, 1966 - Rules 21 & 21-A(1)
- Pension, fixation thereof - Claim to
count the past services rendered before
their
regularization
was
made
-
Permissibility - Delay was caused by St. in
regularization - Effect - Held, by virtue of
Rule 21-A(1), their services were liable to
be considered for regularisation soon after
the introduction of Rule 21-A(1) in the
Rules, 1966. Merely because the St. did
not
consider
their
services
for
regularisation for sufficiently long would
not be a valid ground to allow the St. to
contend now that since their entry into
service is after 1.4.2005, therefore, they
would not be entitled to the benefit under
the Old Pension Scheme - Any delay
occasioned by the St. in consideration of
their claim for regularisation cannot be a
ground to deny benefit of pension to the
writ petitioners. (Para 16 and 23)
Special Appeal disposed of. (E-1)
List of Cases cited: