# Service Single 715 of 2007. Nagendra Nath Tripathi v. State Cane Service Authority & Ors

- **Citation:** (2013) 2 ILRA 944
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-22
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/service-single-715-of-2007-nagendra-nath-tripathi-v-state-cane-service-42652
- **Pages:** 6

## Headnote

Constitution of India, Art. 226- Principle of
Natural
Justice-dismissal
order
with
recovery of loss of Rs. 1,28,184.31/-
without supplying the copy of documents
and enquiry report-held-dismissal order not
sustainable-quashed-with
liberty
to
proceed further from stage of show cause
notice-with all supported document-utilized
for considering dismissal-take final decision
within 2 month.

Held: Para-19
I am of the considered opinion that by not
providing the said document/material, the
respondents have failed to conform to the
principles of natural justice. Assessment of
quantum of loss allegedly caused by the
petitioner has been done while passing the
impugned order of dismissal and recovery
against the petitioner on the basis of report
submitted
on
12.07.2005
which,
admittedly, was submitted much after
submission
of
inquiry
report
dated
09.08.2004 and issuance of show cause
notice dated 05.10.2004.

Case Law discussed:
1996 UPLBEC 285

## Text

944 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the Special Appeal will not lie if the District
Magistrate functions as a Tribunal and the
Act is with respect to a matter enumerated in
the State List in the Seventh Schedule to the
Constitution. In view of the legal provisions
in the Act and the Rules noted and discussed
above, it has to be held that the District
Magistrate while exercising powers under
the first proviso to Section 95(1)(g) of the
Act is an authority constituted by the State
and clothed with the inherent judicial power
of the State to deal with disputes between the
parties and to determine them on merits
fairly and objectively. In other words, in such
a
capacity
he
satisfies
the
essential
requirements of a 'Tribunal'.

25. Such being the position, the District
Magistrate, as in the case of a Deputy Labour
Commissioner while passing the order under
the Standing Orders or the Commissioner of
the Division while exercising powers under
Rule 285-I of the U.P. Zamindari Abolition
and Land Reforms Rules, 1952 or the
Provident Fund Commissioner exercising
powers under the provisions of the
Employees'
Provident
Fund
and
Miscellaneous Provisions Act, 1952, would
function as a 'Tribunal' while exercising
powers under the first proviso to Section
95(1)(g) of the Act.

26. The Special Appeal is, therefore,
not maintainable and is, accordingly,
dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.07.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Service Single 715 of 2007.
Nagendra Nath Tripathi
 .Petitioner
Versus
State Cane Service Authority & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri Vishal Singh, Sri Amar Bahadur Singh
Sri Jagdish Pratap Pandey

Counsel for the Respondents:
C.S.C., Sri K.S. Pawar

Constitution of India, Art. 226- Principle of
Natural
Justice-dismissal
order
with
recovery of loss of Rs. 1,28,184.31/-
without supplying the copy of documents
and enquiry report-held-dismissal order not
sustainable-quashed-with
liberty
to
proceed further from stage of show cause
notice-with all supported document-utilized
for considering dismissal-take final decision
within 2 month.

Held: Para-19
I am of the considered opinion that by not
providing the said document/material, the
respondents have failed to conform to the
principles of natural justice. Assessment of
quantum of loss allegedly caused by the
petitioner has been done while passing the
impugned order of dismissal and recovery
against the petitioner on the basis of report
submitted
on
12.07.2005
which,
admittedly, was submitted much after
submission
of
inquiry
report
dated
09.08.2004 and issuance of show cause
notice dated 05.10.2004.

Case Law discussed:
1996 UPLBEC 285

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Sri Vishal Singh, learned
counsel for petitioner and Sri K.S.Pawar,
learned counsel for respondent no.1.

2. Under challenge in the instant
writ petition is an order dated 28.12.2006
2 All] Nagendra Nath Tripathi Vs. State Cane Authority & Ors.
945
by
means
of
which
Cane
Commissioner/Chairman
State
Cane
Services Authority, U.P. dismissed the
services of petitioner and also ordered
recovery
of
an
amount
of
Rs.1,28,184.31/- from him.

3. Assailing the impugned order of
punishment, Sri Vishal Singh, learned
counsel for petitioner has strenuously
argued that while passing the impugned
order and also while conducting the
inquiry,
the
respondents
have
not
followed the provisions contained in
Regulation 68 of U.P. Cane Cooperative
Service Regulations, 1975 (hereinafter
referred to as 'Regulation, 1975).

4. Drawing attention of the Court to
Regulation 68 of Regulation 1975, Sri
Vishal Singh has submitted that the said
provision mandates the employer to issue
second show cause notice and in the
instant case before passing the impugned
order of dismissal, the proposed order of
punishment itself was not served on the
petitioner, which amounts to flagrant
violation of the mandatory provision
contained in Regulation 68 of Regulation,
1975. He also stated that on account of
non observance of provision contained in
Regulation 68, the entire departmental
proceedings drawn and carried out against
the petitioner are illegal and hence based
on such illegal proceedings, the impugned
punishment order is also not tenable.

5. The second limb of argument of
Sri Vishal Singh in support of the case of
the petitioner is that there are certain
documents and materials which were
collected
by
the
department
after
conclusion of inquiry by the Inquiry
Officer and even after submission of
inquiry report by the Inquiry Officer
which the petitioner was never confronted
with. It is not only that the material, as is
reflected in the letter dated 12.07.2005,
was collected but was used by the
respondents to pass the impugned order of
punishment. Sri Vishal has vehemently
submitted
that
in
fact
the
entire
departmental
proceedings
have
been
conducted on absolutely wrong premise
inasmuch as without ascertaining the loss,
the
departmental
proceedings
were
initiated and subsequently the loss which
has allegedly been caused to department
has been ascertained after conclusion of
inquiry by the Inquiry Officer. His further
submission is that without forming an
opinion about actual loss, departmental
proceedings could not be instituted or
initiated against the petitioner.

6. On the other hand, Sri K.S.Pawar,
learned counsel for respondent no.1 has
submitted that the procedure as prescribed
under Regulation 68 of Regulation, 1975
has strictly been followed in the instant
case and also that the said provision
contained in Regulation 68 does not
mandate the departmental authorities to
issue any show cause along with the
proposed order of punishment or to invite
comments from the delinquent officer, as
is being canvassed by Sri Vishal Singh.
He has further submitted that so far as the
letter dated 12.07.2005 is concerned, the
requisite information was sought and
furnished only with a view to fasten and
saddle the proportionate liability on the
petitioner after he was found guilty in the
departmental proceedings and hence by
ascertaining
information
even
after
completion of inquiry by the Inquiry
Officer, no wrong has been committed.

7. Countering the submissions made
by Sri Vishal Singh, Sri K.S.Pawar has
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
stated that departmental proceedings were
instituted against the petitioner on the
basis of satisfaction of the appointing
authority as prima facie case of loss to the
department
was
found
against
the
delinquent officer and hence merely
because the exact quantum of loss was not
ascertained,
initiation/institution
of
inquiry against the petitioner cannot be
faulted.

8. Having considered the arguments
made by learned counsel for respective
parties, the first question which needs
consideration by the Court is as to
whether in the instant case there has been
any
violation
of
procedure
of
departmental inquiry as mandated by
Regulation 68 of Regulation 1975 or as to
whether there has been any deviation
there from.

9. To bring home the ground based
on alleged non observance of provision
contained in Regulation 68 of Regulation,
1975, Sri Vishal Singh has submitted that
the said provision mandates issuance and
service of second show cause notice with
the proposed order of punishment, which
in the instant case was not done, hence,
procedure adopted and followed by
respondents
while
conducting
the
departmental proceedings against the
petitioner is not lawful.

10. In support of his contention, Sri
Vishal Singh has relied upon the
judgement rendered by the Hon'ble Apex
Court on the case of Jagdish Prasad vs
Sachiv
Zila
Ganna
Committee,
Muzaffar Nagar and another, reported
in 1986 UPLBEC 285.

11. A perusal of Regulation 68
reveals that the complaint relating to the
charges against the delinquent officer is
required to be reduced in writing and
communicated to the official concerned.
Further, the evidence proposed to be relied
upon in support of the charge is also to be
given to the delinquent officer and thereafter
delinquent officer is required to be called
upon by the Inquiry Officer to submit his
explanation in respect of charges. After the
explanation is furnished, a date is to be fixed
for personal hearing and on the date of
personal hearing, both oral and documentary
evidence is to be produced. The delinquent
officer on the said date is also to be permitted
to cross examine such witnesses as he likes.
Thereafter, delinquent officer is to be given
an opportunity to produce his own witnesses
or documents in support of his case. The
Inquiry Officer on the basis of entire
evidence available before him has to give his
findings on each charge and also to
recommend the punishment which in his
opinion should be inflicted on the delinquent
officer. The said inquiry report is to be
submitted to the competent authority. After
submission of the inquiry report, if the
competent authority proposes to dismiss,
remove or reduce in rank the delinquent
officer, he shall inform the delinquent officer
concerned of the proposed action to be taken
and shall give another opportunity to
delinquent officer to defend himself. Thus,
from perusal of the scheme contained in
Regulation 68 of Regulation, 1975, it is
abundantly clear that phrase "another
opportunity to the official to defend himself"
has been used only with a view to provide an
opportunity to the delinquent officer to
submit his reply/explanation to the inquiry
report along with show cause notice
containing the proposed punishment. The
requirement of Regulation 68 of Regulation,
1975, thus, is that before taking the final
decision in the matter of punishment, the
proposed punishment should be intimated to
2 All] Nagendra Nath Tripathi Vs. State Cane Authority & Ors.
947
the delinquent officer. In case, the punishing
authority gives a show cause notice
containing the proposed punishment along
with inquiry report requiring the delinquent
officer to submit his explanation/reply, the
same would meet the requirement of giving
another opportunity to him to defend
himself.

12. As far as the reliance placed by
Sri Vishal Singh on the judgement in the
case of Jagdish Prasad (supra) is
concerned, it may be noticed that it was a
case where the delinquent officer was
removed for the reason that he was found
not suitable for employment in the Cane
Society. The order of removal was based
on the employee, in the said case, having
been caught in corruption while working
with his erstwhile employer and his
services were terminated by the erstwhile
employer. It is further to be noticed that in
the case of Jagdish Prasad (supra), only
show cause notice was issued to the
employee concerned and no charge sheet
etc. was served as is required to be done
in Regulation 68 of Regulation, 1975.

13. It is in the facts of the said case
that Hon'ble Apex Court has observed that
any order of removal passed in violation
of Regulation 68 of Regulation, 1975 is
not sustainable. The said judgement, in
my considered opinion, does not come to
the aid of Sri Vishal Singh, learned
counsel for petitioner as he has submitted
that
it
was
incumbent
upon
the
respondents to have served copy of
proposed order of punishment itself. In
the instant case a charge sheet was served
on the petitioner, requiring him to furnish
his statement of defence and further he
was also given opportunity of personal
hearing before the Inquiry Officer. The
Inquiry Officer thereafter submitted his
inquiry report which was furnished to the
petitioner along with a show cause notice by
the competent authority which contained the
proposed punishment. Thus, the procedure as
prescribed under Regulation 68 appears to
have been followed. In this view, the
judgement of Jagdish Prasad (supra) does not
have any application so far as the instant case
is concerned.

14. As observed above, the mandate
of Regulation 68 of Regulation, 1975 as
regards, " another opportunity to the
official to defend himself" will be fulfilled
in case the appointing authority gives a
show cause notice mentioning therein the
proposed punishment along with inquiry
report.

15. What needs to be examined in this
case next is as to whether show cause notice
containing in the proposed punishment along
with inquiry report was served on the petitioner
or not. In this regard, a reference may be made
to
annexure
SA-2
annexed
with
the
supplementary affidavit filed by one Sri Rajesh
Mishra on behalf of the respondents, which is a
show cause notice dated 05.10.2004. It is also
noteworthy that admittedly, inquiry report is of
09.08.2004 whereas show cause notice is
subsequent to submission of inquiry report i.e.
05.10.2004. Perusal of the aforesaid show
cause notice dated 05.10.2004 clearly reveals
that inquiry report dated 09.08.2004 was sent to
the delinquent officer along with the said show
cause notice and further that show cause notice
required
the
petitioner
to
submit
his
reply/explanation as to why he should not be
inflicted with the major penalty.

16. Yet by means of another letter dated
12.05.2005, which has also been annexed as
annexure SCA-1 annexed with supplementary
counter affidavit, a reminder was sent to the
petitioner to submit his reply to show cause
948 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
notice dated 05.10.2005. Thus, in my
considered opinion, show cause notice dated
05.10.2004 which not only contains the
proposed punishment the appointing authority
intended to inflict upon the petitioner but also
contains the inquiry report dated 09.08.2004 as
its annexure. In this view, it is difficult to agree
with the submission of learned counsel for
petitioner that requirement of Regulation 68 of
Regulation, 1975 in the instant case was not
fulfilled, thus the said argument merits rejection
and is hereby rejected.

17. Taking up the second limb of
argument advanced by learned counsel for
petitioner to the effect that while passing the
impugned order various materials collected
subsequent to submission of inquiry report
dated 09.08.2004 has been taken into account
without confronting the petitioner with the
said documents and materials, a reference
may be made to letter dated 12.07.2005
written by Inquiry Officer/Deputy Cane
Commissioner
to
the
Cane
Commissioner/Secretary
of State
Cane
Services Authority, U.P. A perusal of the
aforesaid letter dated 12.07.2005 reveals that
even after submission of inquiry report and
after issuance of show cause notice dated
05.10.2004, various materials were collected
by the Cane Services Authority through the
Inquiry Officer which were submitted as late
as on 12.07.2005. The impugned dismissal
order also mentions that the petitioner has
been found to be guilty of causing loss to the
extent of Rs.1,28,184.31/- on the basis of
report submitted by the Deputy Cane
Commissioner/Inquiry Officer. A perusal of
inquiry report dated 09.08.2004 does not,
however, reveal that quantum of alleged loss
caused by the petitioner was ever ascertained
by the Inquiry Officer. The figure of Rs.
1,28,184.31/-. has been borrowed from the
letter dated 12.07.2005 written by the Inquiry
Officer to the State Cane Services Authority
as is apparent from the minutes of meeting of
the Authority held on 03.02.2006.

18. On being confronted as to whether
the minutes of meeting dated 03.02.2006 and
the letter dated 12.07.2005 or the material on
the basis of which the said letter/report dated
12.07.2005 has been prepared, were ever
provided to the petitioner, learned counsel for
respondents could not give any satisfactory
reply. It is, thus, abundantly clear that the
petitioner was never confronted either with the
letter/report dated 12.07.2005 or even with the
minutes of meeting of Cane Services Authority
dated 03.02.2006. It is also noticeable that the
letter/report dated 12.07.2005 and the material
on the basis of which said report has been
prepared as also the minutes of meeting dated
03.02.2006 have been made the basis of
saddling the petitioner with the responsibility of
alleged loss allegedly caused by him. Thus, it
does not leave any room of doubt that the
impugned punishment order is based on certain
documents and materials which the petitioner
was never confronted with.

19. It is settled principles of law that any
document, material or evidence, which is
taken into account for the purposes of passing
order of any of major penalties, has to be
provided to the delinquent officer and since in
the instant case the material available in the
letter/report dated 12.07.2005 was never
provided to the petitioner neither the said
report was given to him, I am of the
considered opinion that by not providing the
said document/material, the respondents have
failed to conform to the principles of natural
justice. Assessment of quantum of loss
allegedly caused by the petitioner has been
done while passing the impugned order of
dismissal and recovery against the petitioner
on the basis of report submitted on 12.07.2005
which, admittedly, was submitted much after
submission of inquiry report dated 09.08.2004
2 All] Shashikant Prasad Vs. The State Thru C.B.I. /A.C.B.
949
and issuance of show cause notice dated
05.10.2004.

20. In view of the aforesaid finding that
the dismissal order has been passed in
flagrant violation of principles of natural
justice, on this ground alone, the impugned
order of punishment deserves to be quashed.

21. As regards submission of learned
counsel for petitioner that the respondents
took a decision for initiation of departmental
proceedings against the petitioner even
without ascertaining the exact loss, hence,
the
very
initiation
of
departmental
proceedings cannot sustain, it may be
observed that at the time of taking decision to
initiate departmental proceedings, prima
facie satisfaction of the competent authority
suffices to support the decision. Thus, this
argument raised on behalf of petitioner by Sri
Vishal Singh is not tenable.

22. However, as observed above, the
departmental
proceedings
against
the
petitioner have been initiated in violation of
principles of natural justice inasmuch as the
report
dated
12.07.2005,
the
material
contained therein and also the minutes of
meeting dated 03.02.2006 were never
provided to the petitioner. The impugned
order of punishment dated 28.12.2006 cannot
legally be permitted to survive.

23. Accordingly, the writ petition is
allowed and the impugned order of punishment
dated 28.12.2006 as contained in annexure no.1
to the writ petition is hereby quashed.

24. It has been stated at the bar that
the petitioner has attained the age of
superannuation on 28.02.2011. In these
circumstances, it is made open to the
respondents
to
initiate
departmental
proceedings from the stage which has been
found to be initiated in the instant
judgement.

25. If respondents decide to initiate
proceedings again, they shall serve show
cause notice to the petitioner which would
contain proposed punishment which the
competent authority may intend to inflict on
the petitioner. The show cause notice shall
also be accompanied by the inquiry report
and
the
copy
of
letter/report
dated
12.07.2005 along with other relevant
material on the basis of which letter/report
dated 12.07.2005 has been prepared and also
minutes of meeting dated 03.02.2006. The
petitioner shall also be given an opportunity
for personal hearing.

26. If the respondents take a decision to
initiate inquiry again, as mentioned above, the
same shall be completed within a period of
two months from the date a certified copy of
this order is produced before the authority
concerned.

27. However, there will be no order
as to cost.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.07.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

U/S 482/378/407 No.767 of 2013

Shashikant Prasad

 ...Applicant
Versus
The State Thru. C.B.I/A.C.B...Respondent

Counsel for the Petitioner:
Sri Nandit Srivastava, Sri Tapeshwar
Kumar Maurya

Counsel for the Respondents:
Sri Bireshwar Nath