# S.P. Srivastava v. State of U.P. and another

- **Citation:** (2012) 2 ILRA 954
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-21
- **Case number:** Writ Petition No. 453 (SB) of 2006
- **Bench:** Rajiv Sharma, Surendra Vikram Singh Rathore
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-p-srivastava-v-state-of-u-p-and-another-42314
- **Pages:** 11

## Text

954 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

15. The matter may be examined from
another angle also. It is well settled that
when the rights and liability are created
under the statute then in that eventuality, the
same has to be seen and decided in
accordance with the provisions contained
under the aforesaid statute and if the statute
becomes silent at particular stage, meaning
thereby the statute intends to attach finality
to the proceeding at that very stage and after
that, in absence of any provision, the
proceeding cannot be re-opened under that
statute, as at one stage finality has to be
attached to the proceeding. However, it can
be challenged before the higher forum.

16. In the result, the writ petition
succeeds and is allowed. The orders dated
21.3.1975 and 27.7.1976 passed by the
Deputy Director of Consolidation in
revision no. 854/199 and revision no.
855/200, (Rehman Vs. Sanjira) are hereby
quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.08.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

Writ Petition No. 453 (SB) of 2006

S.P. Srivastava

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

Constitution
of
India,
Article
226Dismissal order-petitioner working as
Assistant Sale Tax Commissioner-passed
wrong
assessment
order-causing
pecuniary
loss
to
Government-order
passed
by
exercising
Quasi-judicial
order-subject to appeal and revision-no
allegation regarding personal benefiteven enquiry conducted ignoring the
procedure under Rule-held-order not
sustainable-however
considering
retirement of petitioner-no direction for
fresh enquiry-but salary for period under
which was out of job during period of
dismissal-not
given
except
pension
gratuity for entire period of working till
age of superannuation.

Held: Para 21 and 39

Therefore, in view of the aforementioned
discussion, it is clear that the petitioner
in exercise of lawful jurisdiction while
working
on
the
post
of
Deputy
Commissioner Assessment Trade Tax
passed
the
assessment
orders
and
without any oral enquiry these orders
were held by the inquiry officer to be
wrong. Mere wrong exercise of lawful
jurisdiction
cannot
be
said
to
be
misconduct. There was no charge against
the petitioner that they passed such
orders
for
extraneous
consideration.
Perusal of the inquiry report shows that
no witness was examined to prove the
case of the department and only on the
basis of the charges and the assessment
orders and the written reply submitted
by
the
petitioner,
the
inquiry
was
concluded.

Since the petitioners have attained the
age of superannuation and have retired
from
service,
therefore,
it
is
not
desirable to direct enquiry afresh from
the stage of charge-sheet. Therefore
they shall be entitled only for the
consequential financial benefits. The
pension of the petitioners shall be
recalculated treating them to be in
service
till
the
date
of
their
superannuation,
they
shall
not
be
entitled to the salary for the period
during which they remained out of job
because of the dismissal order. The
orders of the recovery of amount are also
hereby
quashed.
The
exercise
for
consequential benefits shall be carried
out within three months from today.
Case law discussed:
(1999) 7 SCC 409; [1992 (3) SCC 124]; [2007
(4) SCC 247]; [2008 (26) LCD 1522]; [2003
2 All] S.P. Srivastava V. State of U.P. and another
955
(21) LCD 610]; (1863) 143 ER 414; (1993) 3
SCC 259; (1998) 7 SCC 66; JT 1996 (3) SC
722; 2001 (19) LCD 513; 2006 (24) LCD 1521;
2008 (16) LCD 891; [2011 (29) LCD 626]

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Since common question of facts
and law are involved in both the
aforementioned writ petitions, as such, the
same are being disposed of by a common
judgment.

2. The petitioners in both the
aforementioned
writ
petitions,
feeling
aggrieved by the order of the disciplinary
authority
punishing
them
with
the
punishment of dismissal from service and
also with recovery of the amount of damage
which was caused to the department by their
alleged misconduct, have preferred the
aforementioned writ petitions.

3. In brief, the facts of Writ Petition
No. 453 (SB) of 2006 are as under:-

Petitioner Sheetala Prasad Srivastava
was appointed as Sales Tax Officer on
20.08.1976. Subsequently, he was promoted
on 26.7.1996 on the post of Assistant
Commissioner, Trade Tax (now known as
Deputy Commissioner, Trade Tax) on
25.7.2002. He was transferred to Bahraich
as Assistant Commissioner (Assessment
Trade Tax). On re-designation of post, he
was designated as Deputy Commissioner
Assessment Trade Tax with effect from
15.11.2002. On 22.7.2003, he was placed
under suspension on the ground that he had
passed assessment orders in some cases
prejudicial to the interest of revenue and
also prepared refund vouchers hurriedly.

4. Feeling aggrieved by the order
dated
22.7.2003,
the
petitioner
had
approached this Court by filing writ petition
No. 1020 (S/B) of 2003. During the
pendency of the said writ petition, the
Additional Commissioner, Grade-I, Trade
Tax, Lucknow, who was appointed as
Enquiry Officer, served a charge sheet dated
20.9.2003. Subsequently, a Division Bench
of this Court, vide order dated 9.10.2002,
disposed of the writ petition finally with a
direction that the petitioner shall file reply
to the charge sheet within 15 days and
thereafter the inquiry be completed within a
period of six weeks and enquiry report
thereafter shall be submitted within 15 days.

5. In compliance of the order dated
9.10.2002, petitioner submitted his reply,
but on account of change of Inquiry
Officers,
the
enquiry
could
not
be
concluded as directed by this Court and as
such, the petitioner moved a representation
before the Inquiry Officer for revocation of
his suspension, which was forwarded, vide
letter dated 31.12.2003 to the Secretary, Tax
recommending the revocation of suspension
of the petitioner. However, the Government
turned down the said recommendation vide
order dated 17.3.2004.

6. Against the above inaction of the
opposite parties, the petitioner had again
approached this Court by filing writ petition
No. 475 (SB) of 2004, raising grievance that
the order passed in his earlier writ petition
has not been complied with.

7. According to the petitioner, on
considering the assertions made in the
above writ petition, a Division Bench of this
Court, vide order dated 7.4.2004, directed
the State to seek instructions from the
authorities concerned as to why the enquiry
is not being completed, despite the orders
passed by this Court as well as the stage of
enquiry. It was also directed to the State to
indicate the reasons for not concluding the
956 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
enquiry and also the proposed action, which
might be taken against the erring officers (if
any). Counsel for the petitioner submitted
that after order dated 7.4.2004 being passed
by this Court, the Inquiry Officer felt
annoyed
and
concluded
the
inquiry
proceedings within five days vindictively
and arbitrarily by holding that the charges
levelled against the petitioner stands proved
and also submitted its report dated
26.4.2004. On the basis of the said
vindictive enquiry report dated 26.4.2004, a
show cause notice was issued to the
petitioner, to which the petitioner submitted
his reply on 27.5.2004, denying therein all
the charges levelled against him.

8. Submission of the petitioner is that
since no action on the said inquiry report
was taken and as such, this Court, vide
order dated 11.4.2005, as an interim
measure, in writ petition No. 475 (S/B) of
2004, stayed the further operation of the
order of suspension dated 22.7.2003 and
further directed the opposite parties to
reinstate the petitioner in service within a
week from the date of receipt of a certified
copy of the order. However, liberty was
granted to the opposite parties to conclude
the disciplinary proceedings against the
petitioner, in accordance with law. In
compliance of the order dated 11.4.2005,
the petitioner was reinstated in service on
26.5.2005 and was transferred as Deputy
Commissioner Enforcement Trade Tax,
Gorakhpur. Thereafter, vide impugned
order dated 22.3.2006, the petitioner was
dismissed from service and an amount of
Rs. 51,52,906/- (Rs. Fifty One Lac Fifty
Two Thousand Nine Hundred Six only) was
directed to be recovered from him. Hence
writ petition No. 453 of 2006 (S/B) was
filed.

9. Factual matrix of Writ Petition No.
575 SB of 2006 are that the petitioner was
also working in the Trade Tax Department
on the post of Trade Tax Officer, which was
re-designated as Assistant Commissioner,
Trade Tax. From 3.8.2001 to 9.7.2003, he
was discharging his duties in district
Bahraich.
During
this
period,
some
assessment orders prejudicial to the interest
of revenue were passed by him in exercise
of his official duties which were alleged to
be against provisions of some circulars of
the department and allegedly caused
damage to the department. He was
transferred to Lucknow and while serving at
Lucknow, he was placed under suspension
vide order dated 22.7.2003. The petitioner
moved
a
representation
requesting
cancellation of his suspension order.
Petitioner filed Writ Petition No. 1134 SB
of 2005 challenging his suspension order.
The said writ petition was disposed of
finally vide judgment and order dated
8.7.2005 directing the State Government to
take final decision in the matter within six
weeks. Since the said judgment and order
dated 8.7.2005 was not complied with by
the respondents, therefore, a Writ Petition
No. 1540 (SB) of 2005 was filed by the
petitioner. A Division Bench of this Court,
vide order dated 14.9.2005, stayed the order
of
suspension.
Subsequently,
after
completion of the inquiry, the petitioner was
dismissed from service and an amount of
Rs. 1,40,265 (Rs. One Lac Forty Thousand
Two Hundred Sixty Five only) was ordered
to be recovered from him. Hence writ
petition No. 575 (S/B) of 2006 was filed.

10. Grievance of petitioners in both
the writ petitions is that the Inquiry Officer
had not correctly appreciated the reply
submitted by them and have concluded the
inquiry hurriedly. It is further submitted that
the principles of natural justice were
2 All] S.P. Srivastava V. State of U.P. and another
957
violated in conducting the said inquiry. It is
further submitted that the amount directed
to be recovered from the petitioners cannot
be termed as loss of revenue to the State on
account of wrong assessment orders passed
by the Assessing Officers as the same can
be reopened in exercise of the powers by
the Revisional Authority and in case, the
turnover has escaped assessment, then the
same can also be reopened by the Assessing
Authority itself. Since no assessment order
was passed in the said cases, therefore, it
cannot be presumed that there was any loss
of revenue to the State. On the basis of this
argument, it is submitted that no recovery
could have been directed against them.

11. So far as the point of loss to the
department is concerned, learned counsel
for petitioner has placed reliance on a letter
dated
19.10.2004
sent
by
Special
Commissioner, Trade Tax, U.P., Lucknow,
addressed to Deputy Commissioner, Kar
Evam Nibandhan Anubhag, U.P., in which,
it is mentioned that there is no evidence on
record regarding the loss of revenue to the
department.

12. The arguments of learned counsels
for the petitioners are that the petitioners
being quasi-judicial authority, in exercise of
their lawful jurisdiction, they have passed
assessment orders wherein the turnover was
assessed and the tax was imposed. Such
quasi-judicial exercise of power cannot be
termed to be misconduct unless and until
the same is perverse or not based on record.
It is further submitted that mere error of
judgment cannot be termed as misconduct.
In the present case there is no charge against
the petitioner that they passed such orders
for extraneous consideration. The Enquiry
Officer, without any evidence on record,
held that the charges stands proved on the
basis of the assessment orders passed by
them and the explanation submitted by
them. This act of the inquiry officer was
done in utmost haste manner without any
oral enquiry.

13. Learned Counsel for the State has
submitted that in this case, due opportunity
was afforded to the petitioners to defend
themselves and keeping in view all the
materials available before the inquiry
officer, enquiry report was submitted, which
was accepted by the disciplinary authority
and
accordingly,
the
petitioner
was
punished, therefore, the impugned order
does not suffer from any illegality, hence,
no interference is called for in exercise of
jurisdiction under Article 226 of the
Constitution of India.

14. We have gone through the
pleadings and materials available on record.

15. It is an admitted fact that the
petitioners were exercising a quasi-judicial
jurisdiction and have passed assessment
orders with regard to several traders, which
were the subject matter of the enquiry.
There was no complaint made against the
petitioner and further with regard to charge
against the petitioners that they got the
refund vouchers prepared very hurriedly,
the same is in the interest of the Department
insofar as on the excess amount the
Department has to pay the interest upto the
date of issuance of refund voucher.

16.

Learned
Counsel
for
the
petitioners have placed reliance upon the
pronouncement of Hon'ble the Apex Court
in the case of Zunjarrao Bhikaji Nagarkar
Vs. Union of India and others (1999) 7
SCC 409, wherein Hon'ble Apex Court, in
paragraphs-41, 42 and 43, has held as
under:-
958 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"41. When penalty is not levied, the
assessee certainly benefits. But it cannot be
said that by not levying the penalty the
officer has favoured the assessee or shown
undue favour to him. There has to be some
basis for the disciplinary authority to reach
such a conclusion even prima facie. The
record in the present case does not show if
the
disciplinary
authority
had
any
information within its possession from there
it could form an opinion that the appellant
showed "favour" to the assessee by not
imposing the penalty. He may have wrongly
exercised his jurisdiction. But that wrong
can be corrected in appeal. That cannot
always
form
a
basis
for
initiating
disciplinary proceedings against an officer
while he is acting as a quasi-judicial
authority. It must be kept in mind that being
a quasi-judicial authority, he is always
subject to judicial supervision in appeal.

42.
Initiation
of
disciplinary
proceedings against an officer cannot take
place on information which is vague or
indefinite. Suspicion has no role to play in
such matter. There must exist reasonable
basis for the disciplinary authority to
proceed against the delinquent officer.
Merely because penalty was not imposed
and the Board in the exercise of its power
directed filing of appeal against that order
in the Appellate Tribunal could not be
enough to proceed against the appellant.
There is no other instance to show that in
similar case the appellant invariably
imposed penalty.

43. If every error of law were to
constitute a charge of misconduct, it would
impinge upon the independent functioning
of quasi-judicial officers like the appellant.
Since in sum and substance misconduct is
sought to be inferred by the appellant
having committed an error of law, the
charge-sheet on the face of it does not
proceed on any legal premise rendering it
liable to be quashed. In other words, to
maintain any charge-sheet against a quasijudicial authority something more has to be
alleged than a mere mistake of law, e.g., in
the
nature
of
some
extraneous
consideration influencing the quasi-judicial
order. Since nothing of the sort is alleged
herein the impugned charge-sheet is
rendered illegal. The charge- sheet, if
sustained, will thus impinge upon the
confidence and independent functioning of
a quasi-judicial authority. The entire system
of administrative adjudication whereunder
quasi-judicial powers are conferred on
administrative authorities, would fall into
disrepute if officers performing such
functions are inhibited in performing their
functions without fear or favour because of
the
constant
threat
of
disciplinary
proceedings."

17. In the case of Union of India Vs.
A.N. Saxena reported in [1992 (3) SCC
124], Hon'ble Apex Court has held as
under:-

"It was argued before us by learned
counsel for the respondent that as the
respondent was performing judicial or
quasi-judicial functions in making the
assessment orders in question even if his
actions were wrong they could be corrected
in an appeal or in revision and no
disciplinary proceedings could be taken
regarding such actions."

18. In the aforementioned case of
A.N. Saxena (Supra) Hon'ble Apex Court
has also observed as under:

"On a reading of the charges and the
allegations in detail learned Additional
Solicitor General has fairly stated that they
2 All] S.P. Srivastava V. State of U.P. and another
959
do not disclose any culpability nor is there
any allegation of taking any bribe or of
trying to favour any party in making the
orders granting relief in respect of which
misconduct
is
alleged
against
the
respondent."

19. Reliance has also been placed on
the pronouncement of a judgment of
Hon'ble Apex Court in the case of Ramesh
Chander Singh Vs. High Court of
Allahabad and another reported in [2007
(4) SCC 247] wherein it has been held in
paragraph-12 as under:-

"12. This Court on several occasions
has disapproved the practice of initiation of
disciplinary proceedings against officers of
the subordinate judiciary merely because
the judgments/orders passed by them are
wrong. The appellate and revisional courts
have been established and given powers to
set aside such orders. The higher courts
after hearing the appeal may modify or set
aside erroneous judgment of the lower
courts. While taking disciplinary action
based on judicial orders, the High Court
must take extra care and caution."

20. IN the aforesaid legal position, it is
abundantly clear that in the absence of any
complaint against the petitioner it can only
be inferred that it was the opinion of the
inquiry officer that the assessment orders
were not in accordance with the circulars of
the department. The perusal of the inquiry
report clearly establishes that on the basis of
the same facts, which were mentioned in the
assessment orders, inquiry officer took a
different view in the matter. Mere wrong
orders passed by a competent authority
cannot be termed to be misconduct, unless
and until such orders, prima facie, proved to
be mala fide, biased or passed for
extraneous considerations. Hon'ble the
Apex Court has also held that such wrong
orders can be corrected in appeal/ revision.
The very purpose of providing remedy of
revision/appeal is, that the law expects that
the wrong orders, if passed by the
authorities, can be corrected by way of
revision/appeal. So far as question of loss of
revenue is concerned, there is a report on
record to the effect that no loss of revenue
has been assessed. Merely on the basis of
presumption that if the orders would have
been passed otherwise then the higher
revenue would have been recovered, it can
not be termed to be loss of revenue. Unless
and until assessment orders for imposition
of tax is passed till then it cannot be said
that there was any loss of revenue.
Therefore, the order for the recovery of the
loss caused to the department also does not
appear to be sustainable under the law.

21. Therefore, in view of the
aforementioned discussion, it is clear that
the petitioner in exercise of lawful
jurisdiction while working on the post of
Deputy Commissioner Assessment Trade
Tax passed the assessment orders and
without any oral enquiry these orders were
held by the inquiry officer to be wrong.
Mere wrong exercise of lawful jurisdiction
cannot be said to be misconduct. There was
no charge against the petitioner that they
passed
such
orders
for
extraneous
consideration. Perusal of the inquiry report
shows that no witness was examined to
prove the case of the department and only
on the basis of the charges and the
assessment orders and the written reply
submitted by the petitioner, the inquiry was
concluded.

22. A Division Bench of this Court in
the case of Parasu Ram Singh Vs.
Secretary of Agriculture, U.P. Lucknow
960 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and others reported in [2008 (26) LCD
1522] has held as under:

"This Court has already held that after
the charge sheet is given to a delinquent
employee an oral enquiry is must, whether
the employee requests for it or not. The
record which has been produced before us
reveals that after submission of reply to the
charge sheet, no date or time was fixed by
the Enquiry Officer for recording of
evidence of the witnesses on behalf of the
Department to prove the charges as also for
the defence witnesses for holding the
enquiry. We are of the view that the
petitioner was not given proper opportunity
of hearing and no oral enquiry as required
by law was held."

23. A Division Bench of this Court in
the case of Radhey Kant Khare Vs. U.P.
Cooperative Sugar Factories Federation
Ltd. reported in [2003 (21) LCD 610] has
also held as under:-

"8. After a charge sheet is given to the
employee an oral enquiry is a must, whether
the employee requests for it or not. Hence a
notice should be issued to him indicating
him the date, time and place of the enquiry.
On that date the oral and documentary
evidence against the employee should first
be led in his presence vide A.C.C. Ltd. v.
Their Workmen (1963) II LLJ 396 (SC).
Ordinarily, if the employee is examined first
it is illegal vide Anand Joshi v. MSFC 1991
LIC 1666 Bom., S.D. Sharma v. Trade Fair
Authority of India 1985 (II) LLJ 193,
Central Railway v. Raghubir Saran 1983
(II) LLJ 26. No doubt in certain exceptional
cases the employee may be asked to lead
evidence first, vide Firestone Tyre and
Rubber Co. Ltd. v. Their Workmen AIR
1968 SC 236, but ordinarily the rule is that
first the employer must adduce his evidence.
The reason for this principle is that the
charge sheeted employee should not only
know the charges against him but should
also know the evidence against him so that
he can properly reply to the same. Where
no witnesses were examined and no exhibit
or record is made but straightaway the
employee was asked to produce his
evidence and documents in support of his
case it is illegal vide P.C. Thomas v.
Mutholi Co-operative Society Ltd. 1978 LIC
1428 Ker, and Meenglas Tea Estate v. Their
Workmen AIR 1963 SC 1719."

24. In the facts of present case, there is
no oral inquiry. The perusal of the inquiry
report establishes that no witness was
examined, therefore, the inquiry report and
the orders of dismissal passed thereon
cannot be sustained in view of the
aforementioned factual and legal position.

25. Natural justice has a prime role to
play in the matter where the justice has to
be secured. Natural justice is another name
for common-sense justice.

26. Rules of natural justice are not
codified canons. But they are principles
ingrained into the conscience of man.
Natural justice is the administration of
justice in a common sense/ liberal way.
Justice is based substantially on natural
ideals
and
human
values.
The
administration of justice is to be freed from
the narrow and restricted considerations
which are usually associated with a
formulated
law
involving
linguistic
technicalities and grammatical niceties. It is
the substance of justice which has to
determine its form.

27. The expressions "natural justice"
and "legal justice" do not present a
watertight classification. It is the substance
2 All] S.P. Srivastava V. State of U.P. and another
961
of justice, which is to be secured by both,
and whenever legal justice fails to achieve
this solemn purpose, natural justice is called
in aid of legal justice. Natural justice
relieves legal justice from unnecessary
technicality,
grammatical
pedantry
or
logical
prevarication.
It
supplies
the
omissions of a formulated law. As Lord
Buckmaster said, no form or procedure
should ever be permitted to exclude the
presentation of a litigant's defence.

28. The adherence to principles of
natural justice as recognized by all civilized
States is of supreme importance when a
quasi-judicial body embarks on determining
disputes between the parties, or any
administrative
action
involving
civil
consequences is in issue. These principles
are well settled. The first and foremost
principle is what is commonly known as
audi alteram partem rule. It says that no one
should be condemned unheard. Notice is the
first limb of this principle. It must be precise
and unambiguous. It should apprise the
party determinatively of the case he has to
meet. Time given for the purpose should be
adequate so as to enable him to make his
representation. In the absence of a notice of
the kind and such reasonable opportunity,
the order passed becomes wholly vitiated.
Thus, it is but essential that a party should
be put on notice of the case before any
adverse order is passed against him. This is
one of the most important principles of
natural justice. After all, it is an approved
rule of fair play. The concept has gained
significance and shades with time. When
the historic document was made at
Runnymede in 1215, the first statutory
recognition of this principle found its way
into the "Magna Carta". The classic
exposition of Sir Edward Coke of natural
justice requires to "vocate, interrogate and
adjudicate". In the celebrated case of
Cooper V. Wandsworth Board of Works
(1863) 143 ER 414 the principle was thus
stated: (ER p.420)

"[E]ven God himself did not pass
sentence upon Adam before he was called
upon to make his defence. ''Adam' (says
God), ''where art thou? Hast thou not eaten
of the tree whereof I commanded thee that
thou shouldest not eat?"

29. Principles of natural justice are
those rules which have been laid down by
the courts as being the minimum protection
of the rights of the individual against the
arbitrary procedure that may be adopted by
a judicial, quasi-judicial and administrative
authority while making an order affecting
those rights. These rules are intended to
prevent such authority from doing injustice.
Inquiries
which
were
considered
administrative at one time are now being
considered as quasi-judicial in character.
Arriving at a just decision is the aim of both
quasi-judicial
enquiries
as
well
as
administrative enquiries. An unjust decision
in an administrative enquiry may have more
far reaching effect than decision in a quasijudicial enquiry. [emphasis supplied]

30. Concept of natural justice has
undergone a great deal of change in recent
years. Rules of natural justice are not rules
embodied always expressly in a statue or in
rules framed thereunder. They may be
implied from the nature of the duty to be
performed under a statute. What particular
rule of natural justice should be implied and
what its context should be in a given case
must depend to a great extent on the fact
and circumstances of that case, the
framework of the statute under which the
enquiry is held. The old distinction between
a judicial act and an administrative act has
withered away. Even an administrative
962 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
order which involves civil consequences
must be consistent with the rules of natural
justice. The expression "civil rights but of
civil liberties, material deprivations and
non-pecuniary damages in its wide umbrella
comes everything that affects a citizen in his
civil life.

31. In D.K. Yadav Vs. J.M.A.
Industries; (1993) 3 SCC 259 the Apex
Court while laying emphasis on affording
opportunity by the authority which has the
power to take punitive or damaging action
held that orders affecting the civil rights or
resulting civil consequences would have to
answer the requirement of Article 14. The
Hon'ble Apex Court concluded as under: -

"The
procedure
prescribed
for
depriving a person of livelihood would be
liable to be tested on the anvil of Article 14.
The procedure prescribed by a statute or
statutory rule or rules or orders affecting
the
civil
rights
or
result
in
civil
consequences would have to answer the
requirement of Article 14. Article 14 has a
pervasive procedural potency and versatile
quality, equalitarian in its soul and
principles of natural justice are part of
Article 14 and the procedure prescribed by
law must be just, fair and reasonable, and
not arbitrary, fanciful or oppressive."

32.

In
National
Building
Construction
Corporation
v.
S.
Raghunathan; (1998) 7 SCC 66, the Apex
Court in unequivocal words that a person is
entitled to judicial review, if he is able to
show that the decision of the public
authority affected him of some benefit or
advantage which in the past he had been
permitted
to
enjoy
and
which
he
legitimately expected to be permitted to
continue to enjoy either until he is informed
the reasons for withdrawal and the
opportunity to comment on such reasons.

33. At this juncture, it would be
relevant to produce relevant portion of
paragraph 34 of the judgment rendered in
State Bank of Patiala and others v.
S.K.Sharma, JT 1996(3) SC 722. Though
this decision was given in a service matter
but the Hon'ble Apex Court has dealt with
the principles of natural justice and the
result, if it is not followed:-

Where the enquiry is not governed by
any rules/regulations/ statutory provisions
and the only obligation is to observe the
principles of natural justice - or, for that
matter, wherever such principles are held to
be implied by the very nature and impact of
the order/action - the Court or the Tribunal
should make a distinction between a total
violation of natural justice (rule of audi
alteram partem) and violation of a facet of
the said rule, as explained in the body of the
judgment. In other words, a distinction must
be made between "no opportunity" and no
adequate opportunity, i.e. between "no
notice"/"no hearing" and "no fair hearing".
(a) In the case of former, the order passed
would undoubtedly be invalid (one may call
it "void" or a nullity if one chooses to). In
such cases, normally, liberty will be
reserved
for
the
Authority
to
take
proceedings afresh according to law, i.e. in
accordance with the said rule (audi alteram
partem). (b) But in the latter case, the effect
of violation (of a facet of the rule of audi
alteram partem) has to be examined from
the standpoint of prejudice, in other words,
what the Court or Tribunal has to see is
whether in the totality of the circumstances,
the delinquent officer/employee did or did
not have a fair hearing and the orders to be
made shall depend upon the answer to the
said query. (It is made clear that this
2 All] S.P. Srivastava V. State of U.P. and another
963
principle (No.5) does not apply in the case
of rule against bias, the test in which behalf
are laid down elsewhere.)

While applying the rule of audi
alteram partem (the primary principle of
natural
justice)
the
Court/Tribunal/Authority must always bear
in mind the ultimate and over-riding
objective underlying the said rule, viz., to
ensure a fair hearing and to ensure that
there is no failure of justice. It is this
objective which should guide them in
applying the rule to varying situations that
arise before them.

34. In M/s Mahatma Gandhi
Upbhokta Sahkari Samiti vs. State of
U.P. and others 2001(19)LCD 513 the
controversy involved was that the order of
cancellation was passed on the basis of
inquiry conducted by Sub Divisional
Magistrate but the copy of the inquiry report
on which reliance was placed was not
furnished to the petitioner. A Division
Bench of this Court held that when report of
inquiry has been relied upon, that report has
to be furnished to the person, who is
affected by the same.

35. The said legal position has been
reiterated and followed in a number of
decisions rendered by this Court in the case
of Dori Lal vs. State of U.P. and others
2006(24)LCD 1521, it has been held that
the order cancelling the licence passed
without the petitioner being provided the
copy of the resolution of the village
Panchayat as well as the enquiry report, if
any and without being afforded opportunity
of submitting explanation and hearing
amounts to gross violation of principle of
natural justice and hence the order is liable
to be quashed.

36. In Rajpal Singh vs. State of U.P.
and others 2008(16) LCD 891, it has been
held by this Court that non-furnishing of the
inspection report of the Supply Inspector,
which was relied upon for cancellation of
the licence, amounts to violation of
principle of natural justice, hence, the order
of cancellation as well as the appellate order
was not sustainable in the eyes of law.

37. Recently, a co-ordinate bench of
this Court in Sita Devi vs. Commissioner,
Lucknow & others reported in [2011(29)
LCD 626] held that the action of the
authority
in
passing
the
order
of
cancellation without supplying the copy of
the preliminary enquiry report while
proving the charges against the petitioner on
the basis of said enquiry report is hit by the
grave legal infirmity and whole action of
the authority is in great disregard of the
principles of natural justice.

38. For the reasons aforesaid, both the
writ petitions deserve to be allowed and are
hereby allowed. A writ of certiorari is
hereby issued to quash the impugned orders
dated 22.3.2006 passed by respondent no. 1
in captioned Writ Petition No. 452 (SB) of
2006 and Writ Petition No.575 (SB) of
2006.

39. Since the petitioners have attained
the age of superannuation and have retired
from service, therefore, it is not desirable to
direct enquiry afresh from the stage of
charge-sheet. Therefore they shall be
entitled only for the consequential financial
benefits. The pension of the petitioners shall
be recalculated treating them to be in
service till the date of their superannuation,
they shall not be entitled to the salary for the
period during which they remained out of
job because of the dismissal order. The
orders of the recovery of amount are also
964 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
hereby
quashed.
The
exercise
for
consequential benefits shall be carried out
within three months from today.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 41351 of 2012

Swami Nath Pal

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

Counsel for the Petitioner:
Sri Ram Dawar

Counsel for the Respondents:
C.S.C.

U.P.
Regularization
of
Daily
Wages
appointment on Group-D post Rules
2001-Rule-4-regularization
of
daily
wager working since 1993-admittedly
working after cut of date-no direction
could be issued-however considering
long time working the government either
consider
regularization
by
amending
rules or give preferential treatment by
giving waitage in regular selection

Held: Para 6

However, it is an alarming situation that
for 19 years petitioner is working on
daily
wages
basis.
There
must
be
thousands of such employees who are
working on daily wage posts for more
than ten years in different departments
of Government of U.P. having been
appointed after 29.06.1991. Government
must
take
a
decision
either
for
regularising their services by amending
the Rules of 2001 or by filling up the
posts
by
regular
appointment
by
providing
due
weightage
to
those
employees who are working on daily
wages basis for a long time particularly
more than ten years.
Case law discussed:
2001 (1) AWC 196; AIR 1992 SC 2130; AIR
2006 SC 1806

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard learned counsel for the
petitioner.

2. The case of the petitioner is that
he is a daily wage employee since 1993 in
U.P. Irrigation Department posted at
Jaunpur but his services have not been
regularised. He is being paid increased
pay-scale
(Paragraph-9
of
the
writ
petition) but he has not been regularised.
The prayer is that respondents may be
directed to regularise the services of the
petitioner on the post of Beldar in the
Department
of
Irrigation,
Division
Jaunpur. The second prayer is that salary
under regular pay-scale may be directed
to be paid to the petitioner. Learned
counsel for the petitioner has placed
reliance upon two authorities. One is of
this Court reported in Betu Prasad Vs.
State of U.P., 2001 (1) AWC 196 and the
other is of the Supreme Court reported in
State of Haryana Vs. Piara Singh, AIR
1992 SC 2130. However after the
judgment of the Supreme Court reported
in Secretary, State of Kiarnataka Vs.
Uma Devi AIR 2006 SC 1806, the
scenario has completely changed.

3. State of U.P. has framed U.P.
Regularisation
of
Daily
Wages
Appointment on Group-D Posts Rules,
2001., Rule-4 of which provides that only
such daily wages employees can be
regularised who were directly appointed
on daily wage basis on Group-D posts in
government service before June 29, 1991.
As the petitioner was appointed in 1993