# Ram Lal v. Managing Director U.P.Cooperative Bank Ltd

- **Citation:** (2010) 2 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-21
- **Case number:** Service Single No.1034 of 1999
- **Bench:** Devi Prasad Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-lal-v-managing-director-u-p-cooperative-bank-ltd-41631
- **Pages:** 5

## Text

2 All] Ram Lal V Managing Director U.P.Cooperative Bank Ltd.
569
was operated upon and the left Fullopian
tube was left untouched. This explanation
was rejected by the trial court, which
decreed the suit for a sum of Rs. 54,000
with pendente lite and future interest @
12 % per annum. The decision was
confirmed by the appellate court and the
High Court and thereafter the appeal filed
by the State of Haryana & others was also
dismissed by the Hon'ble Apex Court.

16. Further as per the facts of the
present case, the sterilization/operation
was
performed
on
19.01.2001
and
thereafter the unwanted child (petitioner
No. 3) was born on 22.11.2002 and the
present writ petition for the alleged
negligence and grant of compensation has
been filed in the year 2010. So, the
present writ petition is liable to be
dismissed on the ground of delay and
laches alone as the petitioners have not
given
any
reason
whatsoever
in
approaching this Court at a belated stage
for redressal of their grievances.

17. Needless to mention herein that
previously Courts did show lenience and
latitude in dealing with matter filed at a
belated stage. Thereby considering the
delay in challenging the order which are
otherwise barred by limitation. It is high
time a changed perspective and attitude
should be adopted, since the Courts are
already overburdened with cases resulting
in inordinate delay in disposal of cases.
Those days of condonation of dalliance
and delay would now be over and in cases
where no sufficient and proper reason is
assigned for delay, the Court must adopt
the stern attitude and refuse relief. That
will also help in transmitting a message
that the Court will no more be indulgent
and parties beware.

18. In view of the abovesaid facts, as
in the present case, the original cause of
action had arisen on the part of the
petitioner in the year 2002, so at this
belated stage, the said issue comes within
the ambit and scope of stale/dead issue
cannot be adjudicated and decided at this
belated stage and the present writ petition
is liable to be dismissed on the ground of
delay and laches.

19. For the foregoing reasons, we
are not inclined to interfere in the matter
while exercising the power under Article
226 of the Constitution of India.

20. Thus, for the reasons stated
above, the present writ petition is
dismissed. However, if the petitioners are
so advised, they may seek their remedy,
in the appropriate forum i.e. by filing a
civil suit, as may be permissible in law.

21. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Service Single No.1034 of 1999

Ram Lal

 ...Petitioner
Versus
Managing Director U.P. Cooperative Bank
Ltd

 ...Respondent

Counsel for the Petitioner
Sri Sandeep Dixit,
Sri H.K. Misra,
Sri H.S. Jain

Counsel for the Respondent
Sri N.K. Seth
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
U.P. Co-operative Societies Employees
Regulation-1975-Regulation
85Dismissal order-without holding enquiry
without opportunity of personal hearing
even the period of medical leave duly
sanctioned not considered-order set-aside-with all consequential benefits with
50% salary.

Held: Para 11

In the facts and circumstances of the
case, at least, it is not a case which shall
warrant
major
punishment
from
dismissal from service. Once, leave has
been
sanctioned
by
the
competent
authority, then the period of absence
from duty does not seem to constitute
the allegation of misconduct. There may
be procedural illegality on the part of the
petitioner but that shall not warrant to
make out a case for imposition of major
penalty. In view of the above, the writ
petition deserves to be allowed.
Case law discussed
(2006) 5 SCC 88, (2002) 7 SCC 142, 1983 (1)
LCD 169, 1984(2) LCD 396, (2001) 1 UPLBEC
331, .2003 (21) LCD 610, (2010) 2 SCC 772.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Sri Hemant Kumar
Mishra, Sri D.P. Sombanshi, learned
counsel for the petitioner and Sri Vijai
Kumar holding brief of Sri B.L. Verma,
learned counsel for the respondents.

2. Facts of the case in brief,
available on record, are that the
petitioner was appointed as Sahyogi in
the World Bank Project Division,
Lucknow in 1978. Thereafter, he was
transferred to U.P. Cooperative Bank
Limited, Lucknow on the same post of
Sahyogi in 1990. On 10.10.1993, the
petitioner was transferred to the Head
Office of the U.P. Cooperative Bank
Talkatora Branch, Lucknow and on
11.12.1993, he was appointed on the
post of Sahyogi in Class IV cadre on the
recommendations
of
the
U.P.
Cooperative Institutional Service Board
against regular vacancy. On account of
absence from duty, the petitioner was
suspended by order dated 31.5.1997
(Annexure No.5 to the writ petition), in
contemplation
of
departmental
inquiry.Chargesheet
dated
14.7.1997
(Annexure No.6 to the writ petition),
was served on the petitioner in response
to which, he while submitting reply
dated 31.7.1997 (Annexure No.7 to the
writ petition), stated that the period,
during which he remained absent from
duty, was already condoned and leave
had been accepted and medical leave
was granted by the competent authority.

3. After receipt of reply of the
petitioner, the inquiry officer submitted
report. Thereafter, show cause notice
dated 31.8.1997 (Annexurre No.9 to the
writ petition), was served on the
petitioner. The petitioner submitted
reply dated 13.9.1998 (Annexure No.11
to the writ petition) and after receipt of
the reply, by the impugned order dated
19.12.1998 (Annexure No.12 to the writ
petition), the petitioner was dismissed
from service.

4. While assailing the impugned
order, the petitioner's counsel raised two
fold arguments: (a) since the medical
leave was sanctioned by the competent
authority for the period of 200 days, the
allegation of absence from duty, shall
not constitute "misconduct" and (b), the
inquiry officer has not recorded any oral
evidence nor has given any opportunity
to
cross
examine
the
prosecution
witness nor opportunity to lead evidence
in
defence
coupled
with
personal
hearing was given to the petitioner.
2 All] Ram Lal V Managing Director U.P.Cooperative Bank Ltd.
571
Hence the inquiry vitiates because of
non-compliance of principles of natural
justice. The disciplinary authority has
also not provided any opportunity of
personal hearing.

5. It is settle proposition of law
that departmental enquiry means service
of chargesheet with opportunity to
delinquent employee to submit a reply
thereafter it shall be necessary to record
oral evidence to prove the allegations
contained in chargesheet. In case the
delinquent employee does not cooperate
then it shall be incumbent upon the
enquiry officer to proceed exparte and
record oral evidence in support of
allegations contained in the chargesheet.
Thereafter, it shall be necessary to
provide
and
opportunity
to
the
delinquent employee to lead evidence in
defence coupled with opportunity of
personal hearing. After receipt of report
from
enquiry
officer
it
shall
be
necessary for the punishing authority to
serve a show cause notice along with
copy of enquiry report and thereafter
pass appropriate order in accordance
with law vide, M.V.Bijlani Vs. Union
of India and others (2006) 5 SCC 88
Sher Bahadur Vs. Union of India and
others
(2002)
7
SCC
142
B.P.
Chaurasia Vs. State of U.P. and
others 1983 (1) LCD 169 Onkar Singh
Vs. State of U.P. and others 1984(2)
LCD 396 Hardwari Lal Vs. State of
U.P. and others (2001) 1 UPLBEC 331
Radhey
Kant
Khare
Vs.
U.P.
Cooperative
Sugar
Factories
Fedration Ltd. 2003 (21) LCD 610.

6. In the present case, admittedly,
neither any evidence was recorded nor
the petitioner was given opportunity to
lead evidence in defence to substantiate
that no misconduct is made out because
of the fact that the medical leave was
sanctioned by the competent authority
with continuity of service.

7. Apart from the above, attention
has been invited to recent judgment of
Hon'ble Supreme Court reported in
(2010) 2 SCC 772 (State of Uttar
Pradesh and others. Vs. Saroj Kumar
Sinha), where their lordships of Hon'ble
Supreme Court while reiterating the
earlier settled proposition of law (supra)
held that failure on the part of the
inquiry officer to grant opportunity of
cross examination by the delinquent
employee and also the opportunity to
lead evidence in defence, vitiated the
inquiry.
For
convenience,
relevant
portion from the judgment of Saroj
Kumar Sinha (supra), is reproduced as
under:

"28. An inquiry officer acting in a
quasi-judicial authority is in the position
of an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary
authority/
Government. His function is to examine
the evidence presented b the Department,
even in the absence of the delinquent
official to see as to whether the
unrebutted evidence is sufficient to hold
that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved and could not have been taken into
consideration to conclude that the charges
have been proved against the respondents.

29. Apart from the above, by virtue
of Article 311 (2) of the Constitution of
India the departmental enquiry had to be
conducted in accordance with the rules of
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
natural justice. It is a basic requirement of
the rules of natural justice that an
employee
be
given
a
reasonable
opportunity of being heard in any
proceedings which may culminate in
punishment
being
imposed
on
the
employee.

30. When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The
inquiry officer has to be wholly unbiased.
The rules of natural justice are required to
be observed to ensure not only that justice
is done but is manifestly seen to be done.
The object of rules of natural justice is to
ensure that a government servant is
treated fairly in proceedings which may
culminate in imposition of punishment
including
dismissal/removal
from
service."

8. Apart from the judgment of
Hon'ble Supreme Court referred and
discussed hereinabove, Regulation 85 of
the U.P. Cooperative Societies Employees
Regulations, 1975 also provides that
delinquent employee shall be given
opportunity to submit reply to chargesheet
and shall also be given opportunity
produce at his own cost or to crossexamine witnesses in his defence and
shall also be given an opportunity of
being hearing in person. Regulation 85 (i)
(a), (b) and (c) of the aforesaid
Regulations is reproduced as under:

85. Disciplinary proceedings.---(i)
The disciplinary proceedings against an
employee shall be conducted by the
Inquiring Officer [referred to in clause
(iv) below with due observance of the
principles of natural justice for which it
shall be necessary that---

(a) the employee shall be served with
a charge-sheet containing specific charges
and mention of evidence in support of
each charge and he shall be required to
submit explanation in respect of the
charges within reasonable time which
shall not be less than fifteen days;

(b) such an employee shall also be
given an opportunity to produce at his
own cost or to cross-examine witnesses in
his defence and shall also be given an
opportunity of being heard n person, if he
so desires;

(c) if no explanation in respect of
charge-sheet
is
received
or
the
explanation submitted is unsatisfactory
the competent authority may award him
appropriate
punishment
considered
necessary."

9. Thus, the statutory provisions also
provide that while holding disciplinary
proceedings the delinquent employee
must be given reasonable opportunity to
defend his cause. In case the procedure
prescribed under law, is not followed,
then it shall vitiate the inquiry proceeding.
In view of settled proposition of law, it
shall be incumbent to inquiry officer to
provide reasonable opportunity to the
delinquent employee to defend his cause.
Denial of opportunity shall be hit by
Article 14 of the Constitution of India.

10. Now, coming to the next limb of
argument. The inquiry officer himself
while submitting report, observed that
during period of absence of leave, the
petitioner
moved
an
application
to
sanction medical leave. The competent
authority has sanctioned the medical
leave. This fact was brought to the notice
of the inquiry officer by the letter of the
2 All] Abdul Sattar and others V State of U.P. and others.
573
Chief
Manager
dated
16.12.2007.
However, the inquiry officer though, not
disbelieved the letter but observed that
appropriate entry has not been made in
the book to debit the leave period.
Whatever entry has been made it is after
institution
of
proceeding.
Even
if
necessary entry has not been made in
book immediately and has been recorded
after
institution
of
proceeding,
the
submission
of
delinquent
employee
carries weight.

11. In the facts and circumstances of
the case, at least, it is not a case which
shall warrant major punishment from
dismissal from service. Once, leave has
been
sanctioned
by
the
competent
authority, then the period of absence from
duty does not seem to constitute the
allegation of misconduct. There may be
procedural illegality on the part of the
petitioner but that shall not warrant to
make out a case for imposition of major
penalty. In view of the above, the writ
petition deserves to be allowed.

12. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 19.12.1998 (Annexure No.12 to the
writ petition), with all consequential
benefit of service. The petitioner shall be
restored
in
service
forthwith
with
continuity of service and all consequential
benefits. However, since the petitioner
has not discharged duty the payment of
salary is confined to 50% admissible
under
Rules.
Liberty
is
given
to
respondents to proceed afresh in case,
advised to do so.

No costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 10970 of 2010

Abdul Sattar and others ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner
Sri Krishan Ji Khare,
Sri A.P.M. Tripath

Counsel for the Respondent
C.S.C.

U.P. Direct Recruitmnet Group-D Post
Rules 1986-appointemnt on class 4th
post-recognised
aided
Intermediate
education-governed
by
Regulation
101-107
of
the
Education
Act-No
procedure
regarding
mode
of
appointment-Rule
86-provides
one
nominee of D.M. in committee- in
absense
of
nominee
of
D.M.
The
selection
Committee
with
entire
selection vitiated-keeping it open to
re-advertise the vacancy.

Held: Para 4

In view of the aforesaid, it is now a
settled legal position that appointment
on
Class-IV
posts
which
can
be
approved, have to be made through a
Selection
Committee
which
must
comprise of a member nominated by
the
District
Magistrate.
Since
the
Selection
Committee,
in
pursuance
whereof petitioner nos.10 to 16 have
been appointed, did comprise of a
nominee of District Magistrate, the
selection are held to be illegal
Case law discussed:
2010 (1) ADJ 403"