# Ram Shanker Shukla v. The State Public Service Tribunal U.P. Lko

- **Citation:** (2011) 1 ILRA 254
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-11
- **Bench:** Devi Prasad Singh, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shanker-shukla-v-the-state-public-service-tribunal-u-p-lko-41858
- **Pages:** 6

## Headnote

Constitution
of
India-Article
226punishment-major
punishment
by
reducing
25%
pension-awarded
by
disciplinary
authority-taking
different
view than-report of enquiry officer-No
opportunity
of
hearing
or
giving
explanation given-in view of law laid
down by Apex Court in Yoginath Bagde-if
disciplinary authority differ from enquiry
report
before
awarding
punishment
opportunity of hearing must-Tribunal
failed to consider this aspect-order not
sustainable.

Held: Para 11

In the present case, a perusal of the
show cause notice at the face of record
shows that the disciplinary authority
formed an opinion without serving a
prior notice containing the points with
regard to difference of opinion with the
enquiry
officer.
Thus,
reasonable
opportunity was not provided by the
disciplinary authority to the petitioner to
advance
his
argument
and
make
representation with regard to tentative
difference of opinion formed by the
disciplinary authority. The purpose of
service
of
notice
containing
the
1 All] Ram Shanker Shukla V. The State Public Service Tribunal U.P. Lko.
255
difference of opinion as observed by the
Hon'ble Supreme Court is to give an
opportunity to the delinquent employee
to pursue his case before the disciplinary
authority
with
regard
to
tentative
opinion formed by him against the
opinion
of
the
enquiry
officer.
A
combined notice with pre-determined
mind and with finding of guilt along with
show
cause
notice
with
regard
to
proposed punishment does not fulfill the
requirement of law as propounded by
the Hon'ble Supreme Court. There must
be
separate
notice
with
regard
to
tentative
opinion
formed
by
the
disciplinary
authority
and
for
the
purpose
of
punishment
with
due
opportunity of hearing in terms of law
settled by Hon'ble Supreme Court. The
tribunal has failed to discharge its
obligation in accordance with the settled
proposition of law.
Case law discussed:
(1997)7 SCC 739; 2008(4) ALJ 481; [2011(1)
ADJ 762 (DB)]; (1993)2 SCC 49; (1993(2 SCC
55; (1993) 2 SCC 56.

## Text

254 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
working of the office of the stamp
reporter. Once the office of the stamp
reporter has accepted a caveat and has
entered
the
same
in
the
register
maintained for the purpose, it becomes a
bounden duty of the office to submit a
clear report in this connection on any
cause
which
may
be
initiated
in
connection thereto. The non reporting of
the filing of the caveat by the office is a
serious thing which in some cases may
affect the valuable right of a party and at
least tends to caste a stigma on the
working of the counsel. The court is thus,
constrained to sound a note of caution to
the stamp reporter to be careful in future
while making reports with regard to the
caveats.

21. The Registrar General is directed
to call for an explanation of the office of
the stamp reporter as to why the caveat
lodged by the applicants in this case were
not reported and to fix responsibility of
the person concerned.

22. The court has also noticed
tendency on part of the lawyers in
receiving notice of the caveat and still not
supplying
copy
of
the
applications/petitions
to
the
counsel/person lodging the caveat and
further
in
concealing
the
fact
of
knowledge of caveat. It undermines the
nobility of the profession. Therefore, it
needs to be tackled appropriately.

23. Let a note be made and placed
by the registry in this connection on the
administrative side for taking necessary
appropriate steps to check the growth of
such a menace.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.03.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE S.C. CHAURASIA, J.

Service Bench no. - 59 of 2004

Ram Shanker Shukla

 ...Petitioner
Versus
The State Public Service Tribunal U.P. Lko.
through Its Registrar
 ...Respondent

Counsel for the Petitioner:
R.S.Pandey

Counsel for the Respondent
C.S.C.

Constitution
of
India-Article
226punishment-major
punishment
by
reducing
25%
pension-awarded
by
disciplinary
authority-taking
different
view than-report of enquiry officer-No
opportunity
of
hearing
or
giving
explanation given-in view of law laid
down by Apex Court in Yoginath Bagde-if
disciplinary authority differ from enquiry
report
before
awarding
punishment
opportunity of hearing must-Tribunal
failed to consider this aspect-order not
sustainable.

Held: Para 11

In the present case, a perusal of the
show cause notice at the face of record
shows that the disciplinary authority
formed an opinion without serving a
prior notice containing the points with
regard to difference of opinion with the
enquiry
officer.
Thus,
reasonable
opportunity was not provided by the
disciplinary authority to the petitioner to
advance
his
argument
and
make
representation with regard to tentative
difference of opinion formed by the
disciplinary authority. The purpose of
service
of
notice
containing
the
1 All] Ram Shanker Shukla V. The State Public Service Tribunal U.P. Lko.
255
difference of opinion as observed by the
Hon'ble Supreme Court is to give an
opportunity to the delinquent employee
to pursue his case before the disciplinary
authority
with
regard
to
tentative
opinion formed by him against the
opinion
of
the
enquiry
officer.
A
combined notice with pre-determined
mind and with finding of guilt along with
show
cause
notice
with
regard
to
proposed punishment does not fulfill the
requirement of law as propounded by
the Hon'ble Supreme Court. There must
be
separate
notice
with
regard
to
tentative
opinion
formed
by
the
disciplinary
authority
and
for
the
purpose
of
punishment
with
due
opportunity of hearing in terms of law
settled by Hon'ble Supreme Court. The
tribunal has failed to discharge its
obligation in accordance with the settled
proposition of law.
Case law discussed:
(1997)7 SCC 739; 2008(4) ALJ 481; [2011(1)
ADJ 762 (DB)]; (1993)2 SCC 49; (1993(2 SCC
55; (1993) 2 SCC 56.

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

1. Heard learned counsel for the
petitioner and learned Standing Counsel
and perused the record.

2. Present writ petition under Article
226 of the Constitution of India has been
preferred against the impugned judgment
dated 5.7.2000, passed by the State Public
Services
Tribunal,
Indira
Bhawan,
Lucknow in Claim Petition No.2027 of
1997 Ram Shanker Shukla versus State of
U.P. and others.

3. In brief, the petitioner, who was a
Tehsildar promoted on the post of Deputy
Collector from 12.11.1986, was served
with two charge-sheets dated 22.8.1989
and 28.8.1989. After enquiry, the enquiry
officer submitted a report exonerating the
petitioner with regard to the charges. On
the report dated 2.4.1992 being placed
before the disciplinary authority, he was
not agreed with the finding recorded by
the enquiry officer. He served a show
cause notice dated 11.2.1994 seeking
reply as to why 25% of the pension may
not be reduced as a measure of
punishment. The petitioner submitted a
reply but of no avail and he was punished
accordingly. The punishment awarded by
the disciplinary authority was subject
matter of dispute before the tribunal.

4. The petitioner took two-fold pleas
before the tribunal. Firstly, no finding
could
have
been
recorded
by
the
disciplinary authority on the judicial order
while discharging his obligation to award
punishment and secondly, the petitioner
took a plea that the impugned order of
punishment was passed in violation of
principle of natural justice. It was stated
by the petitioner before the tribunal that
the disciplinary authority has not issued a
notice containing point of disagreement
with the enquiry officer and straightway a
show cause notice was issued referring
the difference and intention to award
punishment with reduction of 25% of
pension. The tribunal recorded a finding
that the notice dated 11.2.1994 is a
combined notice which also contains the
difference expressed by the disciplinary
authority as well as the show cause with
regard to proposed punishment.

5. While assailing the impugned
order, it has been submitted by the
petitioner's counsel that firstly, the
disciplinary authority should have given
finding after seeking reply from the
petitioner on the difference of opinion
from the enquiry officer and only
thereafter, the show cause notice with
regard to proposed punishment could
256 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
have been given. Learned counsel for the
petitioner has relied upon the cases
reported in (1999)7 SCC 739 Yoginath
D. Bagde versus State of Maharashtra
and another, (1998)7 SCC 84 Punjab
National Bank and others versus Kunj
Behari Misra, 2008(4) ALJ 481 O.N.
Srivastava versus Punjab National
Bank and others and [2011(1)ADJ 762
(DB))]
V.K.
Pathak
versus
Food
Corporation of India and others.

6. With regard to the second
submission that no finding could have
been recorded on the judicial order while
discharging
obligation
to
award
punishment, the petitioner's counsel has
relied upon the cases reported in (1993)2
SCC 49 Union of India and another
versus R.K. Desai, (1993)2 SCC 55 V.D.
Trivedi versus Union of India and
(1993)2 SCC 56 Union of India and
others versus K.K. Dhawan.

7. Now coming to the first limb of
argument, whether a combined notice
could have been given by the disciplinary
authority with regard to the proposed
punishment
and
also
referring
the
difference of opinion. In the case of
Yoginath
D.
Bagde
(supra),
their
Lordships of Hon'ble Supreme Court
observed as under :

"28. In view of the provisions
contained in the statutory rule extracted
above, it is open to the disciplinary
authority either to agree with the findings
recorded by the enquiring authority or
disagree with those findings. If it does
not agree with the findings of the
Inquiring Authority, it may record its
own findings. Where the Inquiring
Authority has found the delinquent
officer guilty of the charges framed
against
him
and
the
Disciplinary
Authority agrees with those findings,
there would arise no difficulty. So also,
if the Inquiring Authority has held the
charges proved, but the Disciplinary
Authority disagrees and records a finding
that the charges were not established,
there
would
arise
no
difficulty.
Difficulties have arisen in all those cases
in which the Inquiring Authority has
recorded a positive finding that the
charges were not established and the
delinquent officer was recommended to
be exonerated, but the Disciplinary
Authority disagreed with those findings
and recorded its own findings that the
charges
were
established
and
the
delinquent officer was liable to be
punished. This difficulty relates to the
question of giving an opportunity of
hearing to the delinquent officer at that
stage. Such an opportunity may either be
provided specifically by the Rules made
under Article 309 of the Constitution or
the Disciplinary Authority may, of its
own, provide such an opportunity. Where
the Rules are in this regard silent and the
Disciplinary Authority also does not give
an
opportunity
of
hearing
to
the
delinquent officer and records findings,
different from those of the Inquiring
Authority
that
the
charges
were
established, "an opportunity of hearing"
may have to be read into the Rule by
which the procedure for dealing with the
Inquiring Authority's report is provided
principally because it would be contrary
to the principles of natural justice if a
delinquent officer, who has already been
held to be 'not guilty' by the Inquiring
Authority, is found 'guilty' without being
afforded an opportunity of hearing on the
basis of the same evidence and material
on which a finding of "not guilty" has
already been recorded.
1 All] Ram Shanker Shukla V. The State Public Service Tribunal U.P. Lko.
257

31. In view of the above, a
delinquent employee has the right of
hearing not only during the enquiry
proceedings conducted by the Enquiry
Officer into the charges leveled against
him but also at the stage at which those
findings
are
considered
by
the
Disciplinary Authority and the latter,
namely, the Disciplinary Authority forms
a tentative opinion that it does not agree
with the findings recorded by the Enquiry
Officer. If the findings recorded by the
Enquiry Officer are in favour of the
delinquent and it has been held that the
charges are not proved, it is all the more
necessary to give an opportunity of
hearing to the delinquent employee before
reversing those findings. The formation of
opinion should be tentative and not final.
It is at this stage that the delinquent
employee should be given an opportunity
of hearing after he is informed of the
reasons on the basis of which the
Disciplinary Authority has proposed to
disagree with the findings of the Enquiry
Officer. This is in consonance with the
requirement of Article 311(2) of the
Constitution as it provides that a person
shall not be dismissed or removed or
reduced in rank except after an enquiry in
which he has been informed of the
charges
against
him
and
given
a
reasonable opportunity of being heard in
respect of those charges. So long as a
final decision is not taken in the matter,
the enquiry shall be deemed to be
pending. Mere submission of findings to
the Disciplinary Authority does not bring
about
the
closure
of
the
enquiry
proceedings. The enquiry proceedings
would come to an end only when the
findings have been considered by the
Disciplinary Authority and the charges
are either held to be not proved or found
to be proved and in that event punishment
is inflicted upon the delinquent. That
being so, the "right to be heard" would be
available to the delinquent up to the final
stage. This right being a constitutional
right of the employee cannot be taken
away by any legislative enactment or
Service Rule including Rules made under
Article 309 of the Constitution.

34. Along with the show-cause
notice, a copy of the findings recorded by
the Enquiry Officer as also the reasons
recorded by the Disciplinary Committee
for disagreeing with those findings were
communicated to the appellant but it was
immaterial as he was required to showcause
only
against
the
punishment
proposed by the Disciplinary Committee
which had already taken a final decision
that the charges against the appellant were
proved. It was not indicated to him that
the Disciplinary Committee had come
only to a "tentative" decision and that he
could show cause against that too. It was
for this reason that the reply submitted by
the appellant failed to find favour with the
Disciplinary Committee.

35.
Since
the
Disciplinary
Committee did not give any opportunity
of hearing to the appellant before taking a
final decision in the matter relating to
findings on the two charges framed
against him, the principles of natural
justice, as laid down by a Three-Judge
Bench of this Court in Punjab National
Bank and Ors. v. Kunj Behari Mishra
referred to above, were violated."

8. Thus, from the perusal of the
aforesaid judgment of Hon'ble Supreme
Court, it is evident that a delinquent
employee has got right of hearing not
only
during
enquiry
proceedings
conducted by the enquiry officer into the
258 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
charges levelled against him but also at
the stage when findings were considered
by the disciplinary authority and latter,
namely the Disciplinary Authority forms
a tentative opinion that it does not agree
with the findings recorded by the Enquiry
Officer. Their Lordships further held that
the right of hearing to the delinquent
employee is a constitutional right and will
be available to the delinquent employee
up to the final stage. Meaning thereby, in
the event of disagreement with the
enquiry officer, it shall be incumbent on
the disciplinary authority to serve a notice
expressing the difference of opinion and
after receiving the reply from the
delinquent
officer,
the
disciplinary
authority may form final opinion after
providing opportunity of hearing.

9. In the case of Kunj Behari
Misra(supra), their Lordships of Hon'ble
Supreme Court observed that whenever
the disciplinary authority disagrees with
the enquiry authority on any article of
charges, then before he records his own
finding on such charges, it must record a
tentative reason for such disagreement
and give the delinquent officer an
opportunity to represent before it records
its conclusive finding.

10. The other cases relied upon by
the petitioner's counsel (supra) reiterate
the aforesaid proposition of law with
regard to service of notice indicating
therein the difference of opinion by the
disciplinary authority and only thereafter,
a final decision may be taken.

11. In the present case, a perusal of
the show cause notice at the face of record
shows that the disciplinary authority
formed an opinion without serving a prior
notice containing the points with regard to
difference of opinion with the enquiry
officer. Thus, reasonable opportunity was
not provided by the disciplinary authority
to the petitioner to advance his argument
and make representation with regard to
tentative difference of opinion formed by
the disciplinary authority. The purpose of
service of notice containing the difference
of opinion as observed by the Hon'ble
Supreme Court is to give an opportunity
to the delinquent employee to pursue his
case before the disciplinary authority with
regard to tentative opinion formed by him
against the opinion of the enquiry officer.
A combined notice with pre-determined
mind and with finding of guilt along with
show cause notice with regard to
proposed punishment does not fulfill the
requirement of law as propounded by the
Hon'ble Supreme Court. There must be
separate notice with regard to tentative
opinion formed by the disciplinary
authority
and
for
the
purpose
of
punishment with due opportunity of
hearing in terms of law settled by Hon'ble
Supreme Court. The tribunal has failed to
discharge its obligation in accordance
with the settled proposition of law.

12. So far as the submission of the
petitioner's counsel based on certain
judgments claiming protection under the
Judicial Protection Act or any other law
for the time being in force is concerned,
that aspect of the matter shall be looked
into by the disciplinary authority since we
are of the view that the procedure adopted
by
the
disciplinary
authority
while
submitting the combined notice is not in
conformity with the law settled by the
Hon'ble Supreme Court (supra).

13. In view of above, the writ
petition is allowed. A writ in the nature of
certiorari is issued quashing the impugned
1 All] Smt. Rani Singh V. State of U.P. and others
259
judgment dated 5.7.2000 passed by the
State Public Service Tribunal as well as
the impugned order dated 4.10.1995 with
regard
to
punishment
awarded
for
reduction from the petitioner's pension
with liberty to the disciplinary authority to
pass a fresh order keeping in view the
observation made hereinabove. In case a
decision is taken to pass fresh order, then
the decision be taken expeditiously and
preferably within a period of three months
from the date of service of a certified
copy of the present order.

14. The writ petition is allowed
accordingly. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.03.2011

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE VEDPAL, J.

Special Appeal No. 211 of 2011

Smt. Rani Singh

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

U.P.
Police
Subordinate
Officers/employees
(Punishment
&
Appeal)
Rules,
1991-Rule
8(2)
(b)-
Dismissal by evoking Power u/s 8(2-B)
of the Rules-on ground the delequinted
employer might be in Jail-disciplinary
Proceeding not possible-challenged by
widow of deceased employee-dismissal
on ground of delay-without considering
this aspect the detention order was set-a
-side by High Court-during pendency of
criminal
appeal
her
husband
diedwithout considering the question of
abatement-dismissal
order
can
not
sustain-but these facts could be decided
only after having counter affidavit-writ
restored on its original number with
direction to consider the amendment of
Petition and to pay the admissible
amount
due-even
on
existence
of
dismissal order-held-delay will not came
in
way
of
widow
challenging
the
dismissal order of her husband in facts
and circumstances of the case.

Held: Para 18, 19, 20 and 21

In view of the peculiar circumstances of
the case, the Court held that the High
Court was not justified in rejecting the
prayer of the appellant primarily on the
ground of delay and laches on the part of
the appellant in questioning the order of
termination passed on 4.8.1992 in a
petition filed in the year 2005, after
acquittal by Sessions Court in appeal.

In the instant case, there is one more
aspect which requires consideration i.e.
status of the employee, namely, the
Constable Raj Kumar Singh for the
purpose of passing of the order of
dismissal
from
service,
when
he
unfortunately died during the course of
trial. If the trial was not completed
before
his
death,
the
question
of
abatement
would
be
taken
into
consideration and also that whether the
dismissal order passed without taking
into consideration the aforesaid fact,
could be passed or sustained. Simply
because at the time of passing of the
dismissal order the person was in jail or
on bail in pending criminal trial and the
dismissal order was not challenged, that
would
not
conclude
the
fate
of
disciplinary proceedings.

This apart, the dismissal order passed on
5.6.01 says that Raj Kumar Singh is in
detention under National Security Act
whereas his order of detention under the
said Act was quashed by the High Court
much before i.e. 16.10.2000.

Since all these questions arise in the writ
petition, which could not be considered
by the learned Single Judge in the
absence of the counter affidavit filed by
the State, we set aside the order passed
by the learned Single Judge and remit