# Riyazuddin v. Commissioner, Milk Dairy Development and others

- **Citation:** (2003) 1 ILRA 68
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-01-07
- **Case number:** Civil Misc. Writ Petition No. 12730 of 2001
- **Bench:** S. N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/riyazuddin-v-commissioner-milk-dairy-development-and-others-40069
- **Pages:** 6

## Headnote

Sri Prakash Padia
S.C.

U.P. Cooperative Societies Employees
Services Regulation 1975- regulation -
84 (f) Petition working as Mechanic -
Notice issued to show Cause about
actual
date
of
Birth-
petitioner
submitted his reply - Considering the
explanation without intimation about
http://www.allahabadhighcourt.nic.in
1 All] Riyazuddin Vs. Commissioner, Milk Dairy Development and others
69
any enquiry officer - dismissal order
passed -utter violation of Principle of
National
Justice-termination
order
quashed.

Held - para 7

Concededly, neither any intimation was
given to the petitioner in relation to
appointment of enquiry officer nor copy
of the enquiry report was supplied to the
petitioner. It would also appear that the
petitioner was also not supplied copy of
the another certificate collected by the
enquiry officer from the same institution.
It also brooks no dispute that any charge
sheet was served to the petitioner or any
disciplinary proceeding as contemplated
under the rules was ever initiated
against
him.
All
this
leaves
an
unbridgeable
hiatus
and
constitutes
flagrant violation of the provisions of the
Regulation 84 (I) (f) and (iv) (a) as well
as 85 of the Service Regulations, 1975.
This also points to clear violation of
principles
of
natural
justice
while
conducting proceedings and passing the
impugned order of dismissal on ground
of alleged misconduct. In the course of
submission, learned counsel for the
petitioner
also
submitted
that
the
petitioner had submitted reply to the
notice which the authorities declined to
acknowledge as a result of which, he
took recourse to submitting the reply by
registered post which was received by
the authorities on 19th Nov 2001. In the
enquiry, the petitioner had demanded
opportunity of hearing and the impugned
order preceded the reply and it was
passed
without
considering
the
explanation submitted by the petitioner.
In this regard, section 103 (I) and (II)
may be referred to. This section deals
with the nature of offences and penalties
therefore. The impugned order too calls
in aid the provisions of section 103 and
therefore, by this reckoning, regulation
84 of the Service Regulation will come
into play and will on all fours apply to
the facts of the present case. Once
regulation
84
comes
into
play,
it
becomes imperative for the authorities
to
have
embarked
upon
regular
departmental
proceedings
consistent
with the provisions of regulation 84 of
the Service Regulation 1975 and this
having not been done, the entire edifice
constructed by the authorities falls to
the ground.
Case law discussed:
1967 SC 1269
1981 SC 1481

## Text

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68 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
deputation reversion to parent post held
proper

Held - Para 4sa

In our opinion the petitioner has no lien
or right to hold the post in the State
Ayurvedic College, Varanasi as she was
only attached to that college and hence
she was purely on deputation there. It is
settled law that a deputationist has no
right to hold the post to which he or she
is sent on deputation, vide JT 2000(6)
574, J.T. 1999 (7) S.C. 44,etc.
Case law discussed:
JT. 2000 (6) 574
JT 1999 (7) SC-44

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
petitioner.

2. The petitioner has prayed for a
mandamus directing the respondents not
to relieve the petitioner from her present
place of posting at State Ayurvedic
College and Hospital Atarra.

3. It appears that petitioner was
appointed by order dated 16.6.88 as
Medical
Officer,
at
Government
Ayurvedic Hospital Talbeahat Lalitpur. In
the year 1990 the petitioner was attached
with State Ayurvedic College, Varanasi
and was deputed for teaching job vide
Annexure-2 and 3 to the writ petition. It is
alleged in paragraph 6 of the petition that
since then the petitioner is doing teaching
job in the college

4. In our opinion the petitioner has
no lien or right to hold the post in the
State Ayurvedic College, Varanasi as she
was only attached to that college and
hence she was purely on deputation there.
It is settled law that a deputationist has no
right to hold the post to which he or she is
sent on deputation, vide JT 2000(6) 574,
J.T. 1999 (7) S.C. 44, etc.

5. It appears that the State
Government by means of order dated
22.10.2002
directed
the
Director,
Ayurvedic and Unani Services, U.P. to
detach all the Medical Officers and place
them on their original place of posting
vide Annexure-10 to the writ petition. The
petitioner has only a lien on her original
place of posting and not the place where
she was attached.

6. Thus we find no illegality in the
impugned
order.
The
petition
is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2003

BEFORE
THE HON'BLE S. N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 12730 of 2001

Riyazuddin

...Petitioner
Versus
Commissioner, Milk Dairy Development
and others

 ...Respondents

Counsel for the petitioner:
Sri A.K.Roy
Sri Deepak Verma

Counsel for the Respondents:
Sri Prakash Padia
S.C.

U.P. Cooperative Societies Employees
Services Regulation 1975- regulation -
84 (f) Petition working as Mechanic -
Notice issued to show Cause about
actual
date
of
Birth-
petitioner
submitted his reply - Considering the
explanation without intimation about
http://www.allahabadhighcourt.nic.in
1 All] Riyazuddin Vs. Commissioner, Milk Dairy Development and others
69
any enquiry officer - dismissal order
passed -utter violation of Principle of
National
Justice-termination
order
quashed.

Held - para 7

Concededly, neither any intimation was
given to the petitioner in relation to
appointment of enquiry officer nor copy
of the enquiry report was supplied to the
petitioner. It would also appear that the
petitioner was also not supplied copy of
the another certificate collected by the
enquiry officer from the same institution.
It also brooks no dispute that any charge
sheet was served to the petitioner or any
disciplinary proceeding as contemplated
under the rules was ever initiated
against
him.
All
this
leaves
an
unbridgeable
hiatus
and
constitutes
flagrant violation of the provisions of the
Regulation 84 (I) (f) and (iv) (a) as well
as 85 of the Service Regulations, 1975.
This also points to clear violation of
principles
of
natural
justice
while
conducting proceedings and passing the
impugned order of dismissal on ground
of alleged misconduct. In the course of
submission, learned counsel for the
petitioner
also
submitted
that
the
petitioner had submitted reply to the
notice which the authorities declined to
acknowledge as a result of which, he
took recourse to submitting the reply by
registered post which was received by
the authorities on 19th Nov 2001. In the
enquiry, the petitioner had demanded
opportunity of hearing and the impugned
order preceded the reply and it was
passed
without
considering
the
explanation submitted by the petitioner.
In this regard, section 103 (I) and (II)
may be referred to. This section deals
with the nature of offences and penalties
therefore. The impugned order too calls
in aid the provisions of section 103 and
therefore, by this reckoning, regulation
84 of the Service Regulation will come
into play and will on all fours apply to
the facts of the present case. Once
regulation
84
comes
into
play,
it
becomes imperative for the authorities
to
have
embarked
upon
regular
departmental
proceedings
consistent
with the provisions of regulation 84 of
the Service Regulation 1975 and this
having not been done, the entire edifice
constructed by the authorities falls to
the ground.
Case law discussed:
1967 SC 1269
1981 SC 1481

(Delivered by Hon'ble S.N. Srivastava, J.)

1. By way of present petition, the
petitioner has canvassed the validity of
order dated 17th March 2001 passed by
respondent no.3 thereby dismissing the
petitioner from the post of mechanic.

2. Necessary facts as are relevant for
just adjudication of the controversy
involved in this petition may be set out.
The petitioner entered the service of the
respondents in the year 1966 having been
appointed on the post of Mechanic. In the
year 1996, he was called upon to produce
documents furnishing details of date of
birth and educational qualifications by
means of letter dated 2.11.1996 and in
compliance,
the
petitioner
submitted
certificate issued by Chief Medical
Officer Bareilly dated 18.11.96 as also the
Transfer Certificate containing details of
his having passed 5th standard and
indicating his date of birth as being
15.10.46. In the certificate issued by
Chief Medical Officer Bareilly, he was
opined to be 50 years of age on 18.11.96.
From a cumulative reading of both the
certificates, it transpires that on 18.11.96,
the age of the petitioner was about 50
years. It is also evident from the record
that an enquiry was set afoot and enquiry
officer was appointed vide letter/order
dated 22nd Jan 2001 to delve into the issue
pertaining to the petitioner's date of birth.
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70 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
It would also appear from the record that
the very next day, the enquiry officer
submitted his report the quintessence of
which is that the actual date of birth of the
petitioner was 20th Jan. 1942 and the
Transfer Certificate was forged one. As a
consequence of enquiry report, a notice
dated 23.01.2001 was served to the
petitioner to submit his explanation within
3
days
prescribing
therein
the
consequences that if he failed to submit
his
explanation,
proceedings
would
follow as the conduct of the petitioner
was one punishable under section 10. (1)
and (2) of the U.P. Co-operative Societies
Act and Regulation 84 (f) of the U.P. Cooperative Societies Employees' Service
Regulations, 1975 (hereinafter referred to
as Service Regulations). It would further
transpire from the record that explanation
as demanded was not submitted within
time and as a sequel thereto, the Transfer
Certificate submitted by the petitioner
was presumed to be forged one resulting
in dismissal of the service of the
petitioner.

3. Learned counsel for the petitioner
canvassed that from the perusal of the
order it is explicit that taking in aid the
provisions contained in Regulations 84 (f)
of
the
U.P.
Co-operative
Societies
Employees' Service Regulations 1975 the
respondents
had
passed
order
of
dismissal. He further submitted that no
enquiry was made and entire exercise was
conducted exparte and behind the back of
the petitioner in antagonism of the
principles of natural justice. The learned
counsel further pointed out that it was
essential for the authorities to serve
charge-sheet as required under Regulation
85 of the Service Regulations followed by
regular departmental proceeding before
passing
order
of
dismissal.
The
submission further proceeds that the
petitioner has no knowledge about the
enquiry and further that enquiry report
was also not supplied to him which exfacie formed the basis of the order of
dismissal and as such the entire exercise
and consequent impugned order are
vitiated in law. The learned counsel
further canvassed that as the dismissal
order had the indicia of a punishment
order under Regulation 84 (f) the
authorities should have followed the
procedure
prescribed
of
disciplinary
proceeding as contemplated under section
85 of the Service Regulations.

4. Sri R.G. Padia, learned counsel
representing
the
respondents,
in
opposition, contended that though it is
indicated in the order that the order has
been passed under Regulation 84 (f) of
the Service Regulations but in effect, the
dispute pertained to change of date of
birth for which notice was given to the
petitioner and it was the only requirement
and the explanation having not been
submitted within the time required,
impugned order was passed after due
consideration of the materials on record.
He further contended that no regular
disciplinary proceeding as mandated by
Regulation 85 of the Service Regulations,
was
warranted
in
the
facts
and
circumstances of the case, Reliance has
been placed on decisions of the Apex
Court in State of Orisa vs. Miss
Binapani Dei1 and Sarjoo Prasad vs.
General
Manager2
to
enforce
his
contention that only notice was necessary
which was served to the petitioner.

1 1967 SC 1269
2 1981 SC 1481
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1 All] Riyazuddin Vs. Commissioner, Milk Dairy Development and others
71
5. Having considered the argument
in all its ramifications, I think it necessary
to have acquaintance with the provisions
of Regulation 84 (I) of the Service
Regulations which are excerpted below:

"84 Penalties. -(I) Without prejudice to
the provisions contained in any other
regulation, an employee who commits a
breach of duty enjoined upon him or has
been convicted for criminal offence or an
offence under Section 103 of the Act or
does
anything
prohibited
by
these
regulations shall be liable to be punished
by any one of the following penalties-
(a) Censure,
(b) Withholding of increments,
(c) Fine on an employee of Category IV
(Peon, Chaukidar etc),
(d) Recovery from pay or security
deposit to compensate in whole or in part
for any pecuniary loss caused to the cooperative society by the employee's
conduct,
(e) Reduction in rank or grade held
substantively by the employee,
(f) Removal from service, or
(g) Dismissal from Service........."

Clause (IV) (a) of Regulation 84 being
relevant may also be abstracted below:

"(iv)
(a)
The
charge-sheeted
employee shall be awarded punishment
by the appropriate authority according to
the seriousness of the offence:

Provided that no penalty under subclauses (e), (f) or (g) of clause (I) shall be
imposed without recourse to disciplinary
proceedings."

It would thus crystallize from perusal of
the provisions contained in Regulation 84
(f) and (g) and the proviso to Regulation
84-(iv) (a) that no punishment could be
imposed without recourse to the regular
disciplinary proceedings. Regulation 85
deals with the disciplinary proceeding and
lays down procedure. Regulation 85 (I)
and (IV) being relevant are quoted below.

"85 (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 in 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.
X
X
X
X

(iv) The Inquiring officer shall be
appointed by the appointing authority or
by an officer of the society authorised for
the purpose by the appointing authority:

Provided that the officer at whose
instance disciplinary action was started
shall not be appointed as an inquiring
officer nor shall the inquiring officer be
the appellate authority."

6. The argument of the learned
counsel for the Opp. Parties that in fact
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72 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the matter pertained to change of date of
birth which did not involve or entail full
fledged departmental proceeding, does
not commend to me for acceptance. Yet
another reason which pricks hole into the
argument of Dr. Padia is the fact that the
enquiry officer was appointed by letter
dated 22.1.2001 who conducted the
enquiry and submitted his report the very
next day. Besides, I have searched the
entire record and there is nothing on the
record suggestive of the fact that
petitioner was ever intimated about
appointment of the enquiry officer. The
fact that enquiry report was not supplied
to the petitioner has not been repudiated
in the counter affidavit. In fact, enquiry
report furnished foundation for passing
the impugned order of dismissal and nonsupply of the enquiry report leaves a
gaping hole in the fairness of the enquiry
and observance of procedure prescribed
for such enquiry. It would further appear
that disciplinary authority has observed in
the order that the certificate furnished by
the petitioner was forged one and this
observation had its basis in the enquiry
report itself. In the above perspective, the
argument of Dr. Padia that it was an
enquiry pertaining to change of date of
birth, has no cutting edge and falls to the
ground. Rather, in fact it was an enquiry
to find out whether document filed by the
petitioner was forged one. Submitting a
forged document no doubt constitutes
misconduct. It is noticeable that the
background of the impugned order is the
exparte enquiry conducted by the enquiry
officer which according to the order
constituted misconduct and warranted
consequent dismissal of the petitioner
from service.

7.

Concededly,
Neither
any
intimation was given to the petitioner in
relation to appointment of enquiry officer
nor copy of the enquiry report was
supplied to the petitioner. It would also
appear that the petitioner was also not
supplied copy of the another certificate
collected by the enquiry officer from the
same institution. It also brooks no dispute
that any charge sheet was served to the
petitioner or any disciplinary proceeding
as contemplated under the rules was ever
initiated against him. All this leaves an
unbridgeable
hiatus
and
constitutes
flagrant violation of the provisions of the
Regulation 84 (I) (f) and (iv) (a) as well
as 85 of the Service Regulations, 1975.
This also points to clear violation of
principles
of
natural
justice
while
conducting proceedings and passing the
impugned order of dismissal on ground of
alleged misconduct. In the course of
submission, learned counsel for the
petitioner
also
submitted
that
the
petitioner had submitted reply to the
notice which the authorities declined to
acknowledge as a result of which, he took
recourse to submitting the reply by
registered post which was received by the
authorities on 19th Nov. 2001. In the
enquiry, the petitioner had demanded
opportunity of hearing and the impugned
order preceded the reply and it was passed
without
considering
the
explanation
submitted by the petitioner. In this regard,
section 103 (I) and (II) may be referred to.
This section deals with the nature of
offences and penalties therefore. The
impugned order too calls in aid the
provisions of section 103 and therefore,
by this reckoning, regulation 84 of the
Service Regulation will come into play
and will on all fours apply to the facts of
the present case. Once regulation 84
comes into play, it becomes imperative
for the authorities to have embarked upon
regular
departmental
proceedings
http://www.allahabadhighcourt.nic.in
1 All] Smt. Gangotri Devi Vs. The State Election Commission and others
73
consistent
with
the
provisions
of
regulation 84 of the Service Regulation
1975 and this having not been done, the
entire
edifice
constructed
by
the
authorities falls to the ground.

8. The case framed against the
petitioner bristles with many infirmities
and one of the noticeable infirmities
coming to the fore is that entire exercise
resulting in the dismissal of the petitioner
was conducted behind the back of the
petitioner and without furnishing relevant
documents or materials forming basis of
the imputation of alleged misconduct
resulting from submitting forged Transfer
Certificate by the Petitioner and this
arbitrary exercise leaves irremovable taint
permeating the impugned order and thus,
the impugned order is vitiated in law on
the unvarnished and simple ground of
violation of natural justice alone. It is
anybody's guess that had the petitioner
been supplied with the T.C. collected by
the enquiry officer, he, in the facts and
circumstances of the case, could have
endeavored to shed sufficient light to
indicate about the certificate collected by
the enquiry officer. To sum up, all these
rights including the right of reasonable
opportunity
to
defend
himself
as
envisaged in the statute have been denied
to the petitioner and by this reckoning, the
impugned order cannot be sustained in
law. The petitioner has also claimed
opportunity to defend herself in reply.

9. As a result of foregoing
discussion, the petition succeeds and is
allowed. As a necessary consequence, the
impugned
order
is
hereby
quashed
attended with the observation that the
disciplinary authority will embark upon
departmental proceedings de novo as
contemplated under rule 84 (1) (f) and
(iv) (a) as well as 85 of the Service
Regulations, 1975 and take the same to
some conclusion after affording due
opportunity of hearing in accordance with
Rules within a period of three months
which period will commence to run from
the date of production of a certified copy
of this order. The consequential benefits
shall abide by the final outcome of the
enquiry.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.1.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 712 of 2003

Smt. Gangotri Devi

...Petitioner
Versus
The State Election Commission and
others

 ...Respondents

Counsel for the Petitioner:
Sri V.C. Misra
Sri Vivek Mishra

Counsel for the Respondents:
Sri P.N. Rai
Sri R.C. Dwivedi
Sri O.P. Singh
S.C.

Constitution of India, Act 226 Election of
Zila Parishad Adhyaksha- cannot be
challenged in Writ Petition once the
election started the only remedy remain
to file election petition.
Case Law discussed:
1996 (6) SCC. -303
2000 (8) SCC. -216
2001 (8) SCC. -509