# Sarwar Hussain v. M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko

- **Citation:** (2025) 3 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-06
- **Case number:** Writ A No. 7393 of 2000
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarwar-hussain-v-m-d-u-p-rajkiya-nirman-nigam-ltd-lko-53224
- **Pages:** 11

## Headnote

A. Service Law - Disciplinary Proceedings -
Disproportionate
Punishment
-
Constitution
of
India,
Article
14
-
Discrimination Among Co-Delinquents -
In cases where multiple persons are
involved in the same incident, parity
among co-delinquents has also to be
maintained when punishment is being
imposed; Imposition of disproportionate
penalty on one delinquent while others
either spared or lightly punished violates
Article 14 and vitiates the disciplinary
action - Disciplinary authority cannot
impose
punishment
which
is
disproportionate, i.e., lesser punishment
for
serious
offences
and
stringent
punishment for lesser offences (Para 33,
34)

B. Service Law - Disciplinary Proceedings
- Natural Justice - Failure to Consider
Reply to Show Cause Notice - Dismissal
Order Vitiated - It is a settled principle of
service
jurisprudence
that
when
a
delinquent employee submits a reply to
the show cause notice issued upon receipt
of the inquiry report, it is incumbent upon
the disciplinary authority to apply its mind
to such reply and record reasons if the
contentions raised are being rejected. In
the present case, although the petitioner
submitted a detailed reply on 25.04.2004
pointing out inconsistencies in the inquiry
report
and
process,
the
disciplinary
authority merely noted the receipt of the
reply but failed to consider it, thereby
rendering
the
dismissal
order
unsustainable in law. Non-consideration
of the employee's reply amounts to denial
of reasonable opportunity and violates
principles of natural justice. Dismissal
order quashed. (Para 35, 36)
3 All. Sarwar Hussain Vs. M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko.
571
C. Service Law - Constitution of India,
Article 226 - Dismissal Order Quashed -
Remand Not Appropriate as Petitioner Had
Died - High Court's Power to Modify
Punishment - Substitution of Punishment
- In exceptional and rare cases, the High
Court can itself impose an appropriate
punishment with cogent reasons. In the
present case, the petitioner died during
the pendency of the writ petition and was
substituted by his legal heirs; hence,
remand of the matter to the disciplinary
authority was not found to be appropriate
by the Court. Exercising its powers under
Article 226 of the Constitution and taking
into account the punishment accorded to
other persons involved in the same
episode,
the
Court
imposed
the
punishment of withholding one increment
permanently and one censure on the
petitioner. The writ petition was partly
allowed; the impugned dismissal order
was
quashed;
and
the
substituted
punishment
was
imposed
on
the
petitioner. (Paras 39, 40, 42)

Allowed. (E-5)

## Text

570 INDIAN LAW REPORTS ALLAHABAD SERIES
15(2) of Statute for purpose of selection of
a Lecturer, therefore, it could not be
considered that all conditions prescribed
under Statute 15(7)(iv) to grant exemption
to petitioner to exempt to face a Selection
Committee for consideration for permanent
were exist. The Selection Committee dated
17.12.2018 does not comprise in terms of
Section 31 and its subsection of the U.P.
State University Act, 1973, therefore, the
reason assigned in impugned order has
legal and factual backup, hence, no ground
exists for interference.

30. In aforesaid circumstances,
Court also takes note conduct of petitioner
that he has not come forward before this
Court with clean hands and since petitioner
was not qualified in terms of Clause
15.7(iv) for appointment on permanent
basis without further reference to a regular
Selection Committee and since requisite
condition of such clause are not present,
therefore, his claim for appointment on
permanent basis cannot be considered.

31. In view of above, Court is of
considered opinion that since petitioner has
not come before this Court with clean
hands, therefore, this writ petition may be
dismissed with cost, however, in the
interest of justice, cost is exempted and
writ
petition
having
no
force
is,
accordingly, dismissed.
----------
(2025) 3 ILRA 570
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 7393 of 2000

Sarwar Hussain ...Petitioner
Versus
M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko.
 ...Respondent

Counsel for the Petitioner:
K.C. Jauhari, Manish Jauhari, Mohit Jauhari,
Subodh Kumar Verma, U.P. Mishra, V.P. Mishra

Counsel for the Respondents:
Mohd. Mansoor Ahmad, Shishir Jain

A. Service Law - Disciplinary Proceedings -
Disproportionate
Punishment
-
Constitution
of
India,
Article
14
-
Discrimination Among Co-Delinquents -
In cases where multiple persons are
involved in the same incident, parity
among co-delinquents has also to be
maintained when punishment is being
imposed; Imposition of disproportionate
penalty on one delinquent while others
either spared or lightly punished violates
Article 14 and vitiates the disciplinary
action - Disciplinary authority cannot
impose
punishment
which
is
disproportionate, i.e., lesser punishment
for
serious
offences
and
stringent
punishment for lesser offences (Para 33,
34)

B. Service Law - Disciplinary Proceedings
- Natural Justice - Failure to Consider
Reply to Show Cause Notice - Dismissal
Order Vitiated - It is a settled principle of
service
jurisprudence
that
when
a
delinquent employee submits a reply to
the show cause notice issued upon receipt
of the inquiry report, it is incumbent upon
the disciplinary authority to apply its mind
to such reply and record reasons if the
contentions raised are being rejected. In
the present case, although the petitioner
submitted a detailed reply on 25.04.2004
pointing out inconsistencies in the inquiry
report
and
process,
the
disciplinary
authority merely noted the receipt of the
reply but failed to consider it, thereby
rendering
the
dismissal
order
unsustainable in law. Non-consideration
of the employee's reply amounts to denial
of reasonable opportunity and violates
principles of natural justice. Dismissal
order quashed. (Para 35, 36)
3 All. Sarwar Hussain Vs. M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko.
571
C. Service Law - Constitution of India,
Article 226 - Dismissal Order Quashed -
Remand Not Appropriate as Petitioner Had
Died - High Court's Power to Modify
Punishment - Substitution of Punishment
- In exceptional and rare cases, the High
Court can itself impose an appropriate
punishment with cogent reasons. In the
present case, the petitioner died during
the pendency of the writ petition and was
substituted by his legal heirs; hence,
remand of the matter to the disciplinary
authority was not found to be appropriate
by the Court. Exercising its powers under
Article 226 of the Constitution and taking
into account the punishment accorded to
other persons involved in the same
episode,
the
Court
imposed
the
punishment of withholding one increment
permanently and one censure on the
petitioner. The writ petition was partly
allowed; the impugned dismissal order
was
quashed;
and
the
substituted
punishment
was
imposed
on
the
petitioner. (Paras 39, 40, 42)

Allowed. (E-5)

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner as well as Shri Shishir Jain,
learned
counsel
appearing
for
the
respondents.

2. By means of the present
petition, the petitioner since deceased and
substituted
by
the
legal
heirs,
has
challenged the order dated 16.09.2000
passed by the respondent No.2, a copy of
which is Anenxure-16 to the petition.

Further prayer is for payment of
subsistence allowance to the petitioner.

3.
 As
Sarwar
Hussain
the
petitioner has died, as such, for the sake of
convenience, Sarwar Hussain would be
referred to as the petitioner.
4. By means of the order dated
16.09.2000, the petitioner since deceased
has been dismissed from service.

5. The facts of the case revolve in
a narrow compass inasmuch as the
petitioner was working as Store Keeper
when he was issued charge-sheet dated
20.07.1999, a copy of which is Annexure-8
to the petition.

6. The charges leveled in the
charge-sheet were that from a savings bank
account of the Nigam maintained with
Oriental Bank of Commerce, Sitapur
an
amount
of
Rs.56,000/-
was
withdrawn vide a Cheque No.482371.
The cheque was made out to an
unknown person by the name of S.P.
Singh although no amount was payable
to him. In the preliminary enquiry it
emerged that the petitioner had stolen
the cheque and thereafter made the
signatures of Shri P.K. Garg and Shri
Atul Mehrotra and upon the cheque
being presented, the aforesaid amount
was withdrawn.

7. In support of the charges leveled
against the petitioner, the respondents had
made preliminary inquiry report, the report
of the handwriting expert and the accounts
documents of the Unit as the documents to
be read against him.

8. A Show cause notice was issued
to the petitioner to which he submitted his
reply on 25.04.2000, a copy of which is
Annexure-15 to the petition.

9. The disciplinary authority vide
order impugned dated 16.09.2000 upon
consideration of the inquiry report has
dismissed the petitioner from service and
hence the petition.
572 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Grounds taken by the learned
counsel appearing for the petitioner while
raising the challenge to the punishment
order and the legal grounds on the basis of
supplementary affidavit as have been urged
by the learned counsel appearing for the
petitioner are

(a) that a perusal of the
impugned removal order dated
16.09.2000 would indicate that
none of the grounds that have been
raised by the petitioner in his reply
to the show cause notice dated
16.02.2000 have been considered
while passing the order impugned.
(b) disparity in punishment
to the persons involved in the entire
episode.

11. Elaborating this ground,
learned counsel appearing for the petitioner
argues that the preliminary enquiry report
dated 07.11.1998, a copy of which is
Annexure-5 to the writ petition, would
indicate the connivance of three officers
namely Shri P.K. Garg, who was Project
Manager and had opened the concerned
Bank account which was a savings bank
account
without
approval
from
the
Headquarters; Shri B.B.L. Gupta, who was
the Assistant Accountant and was also the
in-charge of the cheque book and cheque
issue register and had duly been informed
by one Shri Mohd Yunus, the Office
Assistant regarding Cheque No.482371 i.e.
the cheque involved in the entire episode,
having gone missing but no endorsement
had been made by Shri Gupta in the said
register; and Shri Mohd Yunus, who was
the Office Assistant and who is said to have
informed Shri B.B.L. Gupta about the
cheque having gone missing to which it had
been observed in the preliminary enquiry
report itself that the statements given by
Shri B.B.L. Gupta do not appear to be
correct and that he has tried to hide his
mistakes.

12. The contention is that all the
aforesaid three persons were actively
involved in the entire episode which had
resulted in an amount of Rs.56,000/- being
withdrawn.

13. The argument is that obviously,
no saving bank account could have been
opened for the respondent-Corporation and
in case Shri P.K. Garg, the Project Manager
opened the said savings bank account and
admittedly the same was opened without
any approval from the Headquarter, as
specifically finds place in the preliminary
enquiry report, the same thus appears to be
the first act in the entire episode for
withdrawal of the amount Rs.56,000/- with
the active connivance of Shri B.B.L. Gupta,
the Assistant Accountant and Shri Mohd
Yunus, Office Assistant but it is only the
petitioner who has been imposed extreme
penalty of dismissal from service while
Shri B.B.L. Gupta has been imposed with
withholding of one increment permanently
and a penalty of censure while no action
has been taken against Shri P.K.Garg.

14. It is also contended that
initially Shri Mohd Yunus had been
dismissed from service but upon a
challenge being raised to the dismissal
order by Shri Mohd Yunus by filing Writ
Petition No.6544(SS) of 2000 In Re Mohd
Yunus Khan vs Uttar Pradesh Rajkiya
Nirman
Nigam
Ltd,
decided
on
04.09.2012, this court had quashed the said
order and remitted the matter to the
appointing authority to consider a lesser
punishment and subsequent thereto, Mohd
Yunus has been imposed with a penalty of
withholding of one increment permanently.
3 All. Sarwar Hussain Vs. M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko.
573
15. Placing reliance on the
judgments of the Hon'ble Supreme Court in
the case of Rajendra Yadav vs State of
Madhya Pradesh & Ors : (2013) 3 SCC 73
and Lucknow Kshetriya Gramin Bank &
Anr vs Rajendra Singh : (2013) 12 SCC
372 the argument is that the Hon'ble
Supreme Court has held that there should
be parity in punishment inasmuch as all
persons similarly circumstanced should be
punished likewise and there cannot be any
discrimination in punishment.

16. Another ground taken by the
learned counsel for the petitioner is that no
date, time or place of enquiry has been
fixed in the matter which thus vitiates the
entire enquiry proceedings as well as the
impugned order of dismissal.

17. On the other hand, Shri Shishir
Jain, learned counsel appearing for the
respondents-Corporation on the basis of
averments
contained
in
the
counter
affidavit has argued that the active role of
the petitioner in the entire episode has
clearly emerged as would be apparent from
perusal of the report of handwriting expert
from which it is clearly apparent that the
cheque,
with
which
an
amount
of
Rs.56,000/- was withdrawn, was bearing
the
handwriting
and
the
fraudulent
signatures that were made by the petitioner
and thus there cannot be parity with the
other persons namely Shri P.K. Garg,
B.B.L. Yadav and Shri Mohd Yunus whose
roles have been spelt out in the preliminary
enquiry report itself. He further argues that
once the petitioner himself was the main
culprit
consequently
the
punishment
imposed upon him i.e. of dismissal has
correctly been imposed and once the
charges leveled against the others were
different there cannot be any occasion of
parity. However, Shri Jain does not dispute
the punishments meted out to Shri B.B.L.
Gupta and Shri Mohd Yunus and no action
having been taken against Shri P.K. Garg.

18. So far as non consideration of
the petitioner's reply in the dismissal order
is concerned, the argument of Shri Shishir
Jain is that the petitioner had not indicated
anything new in his reply to the show cause
notice that had been given by the
respondent-Corporation and consequently
no error was committed by the disciplinary
authority in not considering the reply as
had been given by Sarwar Hussain.

19. Shri Jain also argues that
perusal of the enquiry report would indicate
that repeated opportunity of personal
hearing had been given to the petitioner but
the petitioner admittedly failed to appear on
one pretext or the other on the said dates
consequently no error has been committed
by the enquiry officer in submitting the
enquiry report.

20. As regards the subsistence
allowance, Shri Shishir Jain, learned
counsel appearing for the respondentsCorporation has argued that after the
petitioner
had
been
placed
under
suspension, he was required to be submit a
certificate of not being engaged in any
other business or profession in order to get
subsistence allowance but he failed to do so
and as such subsistence allowance was not
paid to him.

21. Heard learned counsel for
contesting parties and perused the record.

22. While the petitioner was
working as Store Keeper, an amount of
Rs.56,000/- was withdrawn from the
savings bank account of the Corporation
maintained with the Oriental Bank of
574 INDIAN LAW REPORTS ALLAHABAD SERIES
Commerce vide Cheque number 482371. In
a preliminary enquiry, it emerged that the
petitioner had stolen the cheque and
thereafter had made the signatures of Shri
P.K.Garg and Shri Atul Mehrotra on the
said cheque and upon the said cheque being
presented before the bank, aforesaid
amount was withdrawn.

23. Handwriting on the cheque and
the signatures on the cheque were duly
determined by the respondents on the basis
of the report of the handwriting expert, to
be that of the petitioner.

24. A preliminary enquiry was held
of which a report dated 07.11.1998 was
drawn up.

25. A perusal of the report
indicates that Shri P.K. Garg, Project
Manager had opened the concerned bank
account
without
approval
from
the
Headquarters.
Incidentally,
the
Bank
account, as already indicated above, was a
savings bank account and obviously no
savings bank account could be opened for a
Corporation.
Shri
B.B.L.
Gupta,
the
Assistant Accountant, who was also incharge of the cheque book and cheque issue
register had duly been informed by Shri
Mohd Yunus, the Office Assistant regarding
the cheque no.482371 i.e. the cheque
involved in the entire episode having gone
missing but no endorsement had been made
by Shri Gupta in the register. He also
denied Shri Mohd Yunus having informed
him about the loss of the cheque which in
the preliminary enquiry was found to be not
correct and Shri Gupta was found to have
cleverly hidden his mistakes and the correct
facts.

26. The preliminary enquiry may
have remained a preliminary enquiry but
for the fact that the said preliminary
enquiry report was made part of the chargesheet dated 26.03.1999, which was issued
to the petitioner and the charge against the
petitioner was of having fraudulently
withdrawn Rs.56,000/- from the bank on
the basis of fake signatures on the cheque
which was sought to be proved on the basis
of said preliminary enquiry report along
with the report of the handwriting expert.
Thus, it is apparent that the respondents
were of the view that the said preliminary
report should be utilized against the
petitioner.

27. The enquiry report dated
19.01.2000 was submitted in which charges
were found proved against the petitioner in
which again strong reliance had been
placed on the preliminary enquiry report.

28. Show Cause Notice was issued
to the petitioner to which he submitted a
reply but the disciplinary authority without
considering the grounds taken by the
petitioner in his reply, passed the impugned
order of dismissal.

29. Sheet anchor of the argument
of the petitioner is the preliminary enquiry
report which, as already been indicated
above, indicates connivance of Shri P.K.
Garg the Project Manager having opened
concerned bank without approval from the
headquarter and Shri B.B.L. Gupta, the
Assistant Accountant and in-charge of
cheque book and cheque issue register
having not endorsed about the said cheque
having gone missing.

30. When the charge against the
petitioner is seen in the light of the
preliminary
enquiry
report
and
the
departmental enquiry report as submitted
against the petitioner, it emerges about a
3 All. Sarwar Hussain Vs. M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko.
575
savings bank account having been opened
by Shri P.K. Garg without any authority
from the headquarter, Shri B.B.L. Gupta
not having entered the lost cheque in the
cheque book and cheque issue register and
the
petitioner
having
made
forged
signatures on the cheque which all action
resulted in the withdrawal of Rs.56,000/-
from the bank. Thus, the petitioner was
only one part of the entire episode which
started with an unauthorized saving bank
account being opened by Shri P.K. Garg
and which culminated with fraudulent
withdrawal of Rs.56,000/-.

31. Admittedly, Shri B.B.L. Gupta
has been punished with a penalty of
withholding of one increment permanently
and a penalty of censure. No action has
been taken against Shri P.K. Garg.
Dismissal order imposed against Shri Mohd
Yunus was set aside by this Court vide
judgment and order dated 04.09.2012 and
upon it being remitted to the respondents,
Shri Mohd Yunus had been imposed with a
penalty of withholding one increment
permanently while it is only the petitioner
who has been imposed with a major penalty
of dismissal from service.

32. As already indicated above, all
the aforesaid persons were part of the same
episode and consequently there clearly has
been discrimination in punishment meted
out to the individuals, who are involved in
the entire episode, with two individuals
namely Shri B.B.L. Gupta and Shri Mohd
Yunus being punished with withholding
one increment permanently and another
individual namely Shri P.K. Garg not being
proceeded against.

33. Hon'ble Supreme Court in the
case of Rajendra Yadav (supra) has held as
under:-
"8. We have gone through
the inquiry report placed before us
in respect of the appellant as well
as Constable Arjun Pathak. The
inquiry clearly reveals the role of
Arjun Pathak. It was Arjun Pathak
who had demanded and received
the
money,
though
the
tacit
approval of the appellant was
proved in the inquiry. The charge
levelled against Arjun Pathak was
more serious than the one charged
against the appellant. Both the
appellants and other two persons
as well as Arjun Pathak were
involved in the same incident. After
having found that Arjun Pathak
had a more serious role and, in
fact, it was he who had demanded
and received the money, he was
inflicted comparatively a lighter
punishment. At the same time, the
appellant who had played a passive
role was inflicted with a more
serious punishment of dismissal
from service which, in our view,
cannot be sustained.
9. The doctrine of equality
applies to all who are equally
placed; even among persons who
are found guilty. The persons who
have been found guilty can also
claim equality of treatment, if they
can establish discrimination while
imposing punishment when all of
them are involved in the same
incident.
Parity
among
codelinquents
has
also
to
be
maintained when punishment is
being imposed. Punishment should
not
be
disproportionate
while
comparing the involvement of codelinquents who are parties to the
same transaction or incident. The
disciplinary
authority
cannot
576 INDIAN LAW REPORTS ALLAHABAD SERIES
impose
punishment
which
is
disproportionate
i.e.
lesser
punishment for serious offences
and stringent punishment for lesser
offences.
10. The principle stated
above is seen applied in a few
judgments of this Court. The
earliest one is DG of Police v. G.
Dasayan [(1998) 2 SCC 407 : 1998
SCC (L&S) 557] wherein one
Dasayan, a police constable, along
with two other constables and one
Head Constable were charged for
the same acts of misconduct. The
disciplinary authority exonerated
two other constables, but imposed
the punishment of dismissal from
service on Dasayan and that of
compulsory retirement on the Head
Constable. This Court, in order to
meet the ends of justice, substituted
the order of compulsory retirement
in place of the order of dismissal
from service on Dasayan, applying
the
principle
of
parity
in
punishment among co-delinquents.
This Court held that it may,
otherwise, violate Article 14 of the
Constitution of India.
11.
In
Shaileshkumar
Harshadbhai Shah case [(2006) 6
SCC 548 : 2006 SCC (L&S) 1486]
the workman was dismissed from
service for proved misconduct.
However,
few
other
workmen,
against whom there were identical
allegations, were allowed to avail
of
the
benefit
of
voluntary
retirement
scheme.
In
such
circumstances, this Court directed
that the workman also be treated
on the same footing and be given
the benefit of voluntary retirement
from service from the month on
which the others were given the
benefit.
12. We are of the view that
the principle laid down in the
abovementioned judgments would
also apply to the facts of the
present case. We have already
indicated that the action of the
disciplinary authority imposing a
comparatively lighter punishment
on the co-delinquent Arjun Pathak
and at the same time, harsher
punishment on the appellant cannot
be permitted in law, since they were
all involved in the same incident.
Consequently, we are inclined to
allow the appeal by setting aside
the punishment of dismissal from
service imposed on the appellant
and order that he be reinstated in
service forthwith. The appellant is,
therefore, to be reinstated from the
date on which Arjun Pathak was
reinstated
and
be
given
all
consequential benefits as were
given to Arjun Pathak. Ordered
accordingly. However, there will be
no order as to costs."

34. Likewise the Hon'ble Supreme
Court in the case of Rajendra Singh
(supra) has held as under:-

"17. If there is a complete
parity in the two sets of cases,
imposing different penalties would
not be appropriate as inflicting of
any/higher penalty in one case
would be discriminatory and would
amount to infraction of the doctrine
of equality enshrined in Article 14
of the Constitution of India. That is
the ratio of Rajendra Yadav case
[Rajendra Yadav v. State of M.P.,
(2013) 3 SCC 73 : (2013) 1 SCC
3 All. Sarwar Hussain Vs. M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko.
577
(L&S) 476 : (2013) 2 Scale 416] ,
already taken note above. On the
other hand, if there is some
difference, different penalty can be
meted out and what should be the
quantum is to be left to the
appellate authority. However, such
a penalty should be commensurate
with the gravity of misconduct and
cannot
be
shockingly
disproportionate. As per the ratio
of Obettee (P) Ltd. case [Obettee
(P) Ltd. v. Mohd. Shafiq Khan,
(2005) 8 SCC 46 : 2005 SCC
(L&S) 1075] even if the nature of
misconduct committed by the two
sets of employees is same, the
conduct of one set of employees
accepting the guilt and pleading for
lenient view would justify lesser
punishment to them than the other
employees who remained adopted
the mode of denial, with the result
that
charges
stood
proved
ultimately in a full-fledged enquiry
conducted against them. In that
event, higher penalty can be
imposed upon such delinquent
employees. It would follow that
choosing to take a chance to
contest the charges such employees
thereafter cannot fall back and say
that the penalty in their cases
cannot be more than the penalty
which is imposed upon those
employees
who
accepted
the
charges at the outset by tendering
unconditional apology.
18. This, according to us,
would be the harmonious reading
of Obettee (P) Ltd. [Obettee (P)
Ltd. v. Mohd. Shafiq Khan, (2005)
8 SCC 46 : 2005 SCC (L&S) 1075]
and Rajendra Yadav [Rajendra
Yadav v. State of M.P., (2013) 3
SCC 73 : (2013) 1 SCC (L&S) 476
: (2013) 2 Scale 416] cases."

35. Another aspect of the matter is
that after the petitioner had been served
with the inquiry report, a show cause notice
was issued to him asking him to submit his
reply. The petitioner submitted a detailed
reply pointing out the incongruities in the
inquiry report and in the process of inquiry
but the disciplinary authority, although
indicating about the reply having been
submitted by the petitioner on 25.04.2004
yet has failed to consider the same and has
dismissed the petitioner from service.

36. It is settled proposition of law
that when a reply has been submitted, the
concerned authority is required to apply his
mind to the reply submitted by the
employee concerned. In this regard, it
would be suffice to refer to the judgment of
the Hon'ble Supreme Court in the case of
Raj Kumar Mehrotra Vs. State of Bihar &
Ors reported in (2005) 12 SCC 256
wherein the Hon'ble Supreme Court has
held as under:-

"5. Without going into
other issues raised, we are of the
view that the impugned order of the
respondent
authority
imposing
punishment on the appellant cannot
be sustained. Even if we assume
that Rule 55-A which pertains to
minor punishment was applicable
and not Rule 55 which relates to
major punishments, nevertheless
Rule
55-A
requires
that
the
punishment
prescribed
therein
cannot
be
passed
unless
the
representation made pursuant to
Show cause notice has been taken
into consideration before the order
is passed. There is nothing in the
578 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order which shows that
any of the several issues raised by
the appellant in his answer to the
show cause notice were, in fact,
considered. No reason has been
given by the respondent authority
for holding that the charges were
proved except for the ipse dixit of
the disciplinary authority. The
order,
therefore,
cannot
be
sustained and must be and is set
aside."

37. Likewise, the Hon'ble Supreme
Court in the case of Oryx Fisheries Private
Limited Vs. Union of India & Ors reported
in (2010) 13 SCC 427 has held as under:-

"40.
In
M/s
Kranti
Associates (supra), this Court after
considering
various
judgments
formulated certain principles in
para 51 of the judgment which are
set out below.
a. In India the judicial
trend has always been to record
reasons, even in administrative
decisions, if such decisions affect
anyone prejudicially.
b.
A
quasi-judicial
authority must record reasons in
support of its conclusions. c.
Insistence on recording of reasons
is meant to serve the wider
principle of justice that justice must
not only be done it must also
appear to be done as well.
d. Recording of reasons
also operates as a valid restraint
on any possible arbitrary exercise
of judicial and quasi-judicial or
even administrative power.
e. Reasons reassure that
discretion has been exercised by
the decision maker on relevant
grounds
and
by
disregarding
extraneous considerations.
f. Reasons have virtually
become
as
indispensable
a
component of a decision making
process as observing principles of
natural justice by judicial, quasijudicial and even by administrative
bodies.
g. Reasons facilitate the
process of judicial review by
superior Courts.
h. The ongoing judicial
trend in all countries committed to
rule of law and constitutional
governance is in favour of reasoned
decisions based on relevant facts.
This is virtually the life blood of
judicial decision making justifying
the principle that reason is the soul
of justice.
i. Judicial or even quasijudicial opinions these days can be
as different as the judges and
authorities who deliver them. All
these decisions serve one common
purpose which is to demonstrate by
reason that the relevant factors
have been objectively considered.
This is important for sustaining the
litigants'
faith
in
the
justice
delivery system.
j. Insistence on reason is a
requirement
for
both
judicial
accountability and transparency.
k. If a Judge or a quasijudicial authority is not candid
enough about his/her decision
making
process
then
it
is
impossible to know whether the
person deciding is faithful to the
doctrine
of
precedent
or
to
principles of incrementalism.
l. Reasons in support of
decisions must be cogent, clear and
3 All. Sarwar Hussain Vs. M.D. U.P. Rajkiya Nirman Nigam Ltd. Lko.
579
succinct. A pretence of reasons or
`rubber-stamp reasons' is not to be
equated with a valid decision
making process.
m. It cannot be doubted
that transparency is the sine qua
non of restraint on abuse of judicial
powers. Transparency in decision
making not only makes the judges
and decision makers less prone to
errors but also makes them subject
to broader scrutiny. (See David
Shapiro in Defence of Judicial
Candor (1987) 100 Harward Law
Review 731-737).
n. Since the requirement to
record reasons emanates from the
broad doctrine of fairness in
decision
making,
the
said
requirement is now virtually a
component of human rights and
was considered part of Strasbourg
Jurisprudence.
See
(1994)
19
EHRR 553, at 562 para 29 and
Anya vs. University of Oxford, 2001
EWCA Civ 405, wherein the Court
referred to Article 6 of European
Convention of Human Rights which
requires, "adequate and intelligent
reasons must be given for judicial
decisions".
o. In all common law
jurisdictions judgments play a vital
role in setting up precedents for the
future. Therefore, for development
of law, requirement of giving
reasons for the decision is of the
essence and is virtually a part of
"Due Process".
41. In the instant case the
appellate order contains reasons.
However, absence of reasons in the
original
order
cannot
be
compensated
by
disclosure
of
reason in the appellate order. "
38. Keeping in view the aforesaid
discussion, it is thus apparent that the
impugned order of dismissal is legally
invalid and merits to be quashed.

39.

Consequence
to
the
punishment order being quashed on the
aforesaid ground is remitting of the matter
to the disciplinary authority to pass a fresh
order. However, in the instant case, the
petitioner has died during the pendency of
the instant petition on 24.12.2010 and has
been substituted by his legal heirs. Thus,
remand of the matter in such circumstances
is not found to be appropriate by this Court.

40. It this regard, it would be apt to
refer to the judgment of the Hon'ble
Supreme Court in the case of B.C.
Chaturvedi vs Union Of India And Ors :
1995(6) SCC 749 wherein the Hon'ble
Supreme Court has held in exceptional and
rare cases, the High Court can itself impose
an appropriate punishment with cogent
reasons in support thereof. Consequently
exercising power under Section 226 of the
Constitution of India as well as considering
the punishment as has been accorded to the
other persons in the same episode, the
Court is of the view that the punishment of
withholding one increment permanently
and one censure should be imposed on the
petitioner
and
consequently
the
said
punishment be read for the petitioner with
effect from the date of dismissal order i.e.
16.09.2000.

41. As regards the grievance that
the petitioner has not been paid subsistence
allowance since he was suspended on
18.03.1999, the respondents have indicated
that the petitioner failed to submit the
requisite certificate of not being engaged in
any other business or profession in order to
get subsistence allowance. In absence
580 INDIAN LAW REPORTS ALLAHABAD SERIES
thereto and there being a clear stipulation in
the suspension order for submission of a
certificate and no such certificate having
been given by the petitioner consequently
no direction can be issued for payment of
subsistence allowance.

42. Keeping in view the aforesaid
discussion, the writ petition is partly
allowed. Impugned order dated 16.09.2020,
a copy of which is Annexure-16 to the
petition,
is
quashed.
Punishment
of
withholding one increment permanently
and censure would now stand imposed on
the petitioner with effect from 16.09.2000.
Consequences to follow.
----------
(2025) 3 ILRA 580
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2025

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 19031 of 2024
alongwith other connected cases

Radheyshyam Shukla & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Nawal Kishor Mishra

Counsel for the Respondents:
C.S.C.

A. Constitution of India,1950 - Article
226 - Judicial review - Commutation of
pension - 15 years formula - Policy
matter
-
Scope
of
interference
-
Common Cause's case relied upon -
Commutation of pension is an option
and is exercised by choice and it is not
mandatory
or
compulsory
to
seek
commutation and being a policy matter
cannot be subjected to judicial review
except being mala fide or extremely
arbitrary or contrary to Statute or
irrational. (Para 12)

B. Service Law - UP Civil Pension
Commutation Rules, 1941 - Pension -
Option of commutation - Benefit of lump
sum amount after commutation was
received
-
15
years
formula
was
adopted - Effect - Notification extended
the
period
to
15
years
-
Validity
challenged - Held, this neither prejudices
the rights of any of the parties nor confers
any undue advantage upon any party -
Only on ground that government has
received some more amount to the
amount commuted way back 12 years to
15 years ago would itself not be a ground
to quash the notification not being an
irrational decision, even rate of interest if
calculated would be on very low side -
Ashok Kumar Agrawal's case relied upon.
(Para 15 and 17)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Ashok Kumar Agrawal & ors. Vs U.O.I.& anr.,
2025:AHC:6439-DB

2. 'Common Cause' A Registered Society &
ors.Vs U.O.I.; (1987) 1 SCC 142

3. Forum Of Retired IPS Officers (FORIPSO) Vs
U.O.I. & anr., AIRONLINE, 2019 DEL 508

4. R. Gandhi Vs U.O.I.& anr.; (1999) Supp. 1
SCR

5. Welfare Association Of Absorbed Central
Government Employees in Public Enterprises Vs
U.O.I.& ors.; (1991) 2 SCC 265

6. Bharat Petrolium Corp. Ltd. Ex. Employees
Association & ors.Vs Chairman and Managing
Director Bharat Petrolium Corporation Ltd.
Bombay & ors.; (1993) 3 SCALE 424

7. T.R. Single & ors.Vs St. of Pun. & ors.; (2003)
2 ILR Punjab and Haryana 254