# Smt. Parmi Maurya v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-31
- **Case number:** Special Appeal (D) No. 110 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-parmi-maurya-v-state-of-u-p-and-ors-42954
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226-
Writ
Jurisdiction
scope
of
interferenceappellant was appointed as health worker
on
04.01.90-on
29.10.10-required
to
submit
her
original
certificate-on
verification nothing found adverse to
appellant-terminations based upon report
138 INDIAN LAW REPORTS ALLAHABAD SERIES
of medical faculty without supplying copywithout charge sheet-without disciplinary
proceeding-bad-learned single judge-can
not inter into genuineness of document
and record finding of facts-order passed by
authority as well as Single Judge quashedwith liberty to hold fresh departmental
enquiry-if desired-Appeal allowed.

Held: Para-9 & 10-

## Text

1 All] Smt. Parmi Maurya Vs. State of U.P. and Ors.
137

"Section
389(1)
empowers
the
Appellate Court to order that the execution
of the sentence or ordcr appealed against be
suspended pending the appeal. What can be
suspended under this provision is the
execution of the sentence or the execution
of the order. Does 'Order' in Section 389(1)
empowers the Appellate Court to order that
the execution of the sentence or order
appealed against be suspended pending the
appeal. What can be suspended under this
provision is the execution of the sentence or
the execution of the order. Does 'Order' in-
Section 389(1) mean order of conviction or
an order similar to the one under Sections
357 or 360 or the Code? Obviously, the
order re- ferred to in Section 389(1) must be
an order capable in execution. An order of
conviction by itself is not capable of
execution under the Code. It is the order of
sentence
or
an
order
awarding
compensation or imposing fine or release on
probation which are capable of execution
and which if not suspended, would be
required
to
be
executed
by
the
authorities...... In certain situations the order
of conviction can be executable, in the
sense, it may incur a disqualification as in
the instant case. In such a case the power
under Section 389(1) of the Code would be
invoked. in such situations, the attention of
the Appellate Court must be specifically
invited to die consequence that is likely to
fall to enable it to apply its mind to the issue
since under Section 389(1) it is under an
obligation to support its order for reasons to
be recorded by it in writing. If the attention
of the Court is not invited to this specific
consequence which is likely to fall upon
conviction how can it be expected to assign
reasons relevant thereto?...... If such, a
precise request was made to the Court
pointing out the consequences likely to fall
on the continuance of the conviction order,
the Court would have applied its mind to
the specific question and if it thought that
case was made out for grant of interim stay
of the conviction order, with or without
conditions attached thereto, it may have
granted an order to that effect. "

13. Thus as summed up by the
Hon'ble Supreme Court it is abvious that
pendency of appeal has no effect over the
punishment unless the order of conviction
is set aside. .

14. On a keen scrutiny of the
judgements referred as above as well as
facts of the case, I am of the view that
there is no violation of Article 311(2)(a)
of the Constitution of India in passing the
order of dismissal. Therefore the writ
petition is dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal (D) No. 110 of 2014

Smt. Parmi Maurya..... Petitioner
Versus
State of U.P. and Ors....... Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri M.A. Ausaf

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-226-
Writ
Jurisdiction
scope
of
interferenceappellant was appointed as health worker
on
04.01.90-on
29.10.10-required
to
submit
her
original
certificate-on
verification nothing found adverse to
appellant-terminations based upon report
138 INDIAN LAW REPORTS ALLAHABAD SERIES
of medical faculty without supplying copywithout charge sheet-without disciplinary
proceeding-bad-learned single judge-can
not inter into genuineness of document
and record finding of facts-order passed by
authority as well as Single Judge quashedwith liberty to hold fresh departmental
enquiry-if desired-Appeal allowed.

Held: Para-9 & 10-
9. The facts of the present case are,
therefore, clearly distinguishable. The
charge of misconduct has to be duly
established. Since no disciplinary inquiry
was held, the charge was never proved.

10. In this view of the matter, we are of
the view that the judgement and order of
the learned Single Judge is unsustainable
and the special appeal would have to be
allowed. We, accordingly, allow the special
appeal in terms of the following directions:

Case Law discussed:
AIR 2004 SC 1469; AIR 1995 SC 94.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. This special appeal arises from a
judgement of the learned Single Judge
dated 24 September 2013.

2. The appellant applied for and was
appointed on 4 January 1990 on the post of
Health Worker (Female). The appellant
claims to have completed the A.N.M.
course at the A.N.M. Training Centre,
Azamgarh in 1989. According to the
appellant, the mark sheets were issued in the
year 1989 and a training certificate was
issued by the Secretary, U.P. State Medical
Health and Family Welfare Faculty on 9
August 1993. A notice to show cause was
issued to the appellant on 29 October 2010
intimating her that the documents which
were submitted by the appellant had been
examined by the Medical Faculty and were
found to be fabricated. The appellant was
called
upon
to
submit
documentary
evidence for verification within a period of
three days. The appellant has averred that in
pursuance of the notice to show cause, she
appeared before the Chief Medical Officer,
Chitrakoot
(second
respondent)
and
produced the original certificate/training
certificate which were scrutinized by the
second respondent. On 30 November 2010,
an order of termination was passed by the
second respondent. The order of termination
was challenged by the appellant in the writ
proceedings before the learned Single Judge
under Article 226 of the Constitution. The
principal ground of challenge was that the
order of termination which constituted a
major penalty was passed without any
inquiry and in breach of the principles of
natural justice as no charge sheet was issued
and no reasonable opportunity of defending
the charge was furnished to the appellant.

3. The learned Single Judge noted the
submission of the appellant that a copy of
the report on the basis of which the order of
termination was passed was not supplied to
the appellant nor was she afforded an
opportunity of defence as no departmental
inquiry was conducted. The learned Single
Judge held that normally a petition on such
a submission would succeed but where the
Court, after perusing the record, could itself
arrive at a particular conclusion that would
support
the
ultimate
decision,
writ
jurisdiction under Article 226 of the
Constitution should not be exercised since
substantial justice has been done. On this
basis, the learned Single Judge examined
the records on which reliance was placed by
the appellant and having found that there
was discrepancy, declined to interfere with
the order of termination. The learned Single
Judge has also relied upon the judgement of
the Supreme Court in R. Vishwanatha Pillai
Vs. State of Kerla1
1 All] Smt. Parmi Maurya Vs. State of U.P. and Ors.
139

4. The principal challenge of the
appellant is that since the order of
termination was passed without issuing a
charge sheet and without conducting a
disciplinary proceeding, the principles of
natural justice had been violated. Learned
counsel for the appellant has submitted
that the learned Single Judge was not
justified in enquiring into the evidence for
the first time in exercise of the writ
jurisdiction under Article 226 of the
Constitution. Moreover, it was submitted
that the judgement of the Supreme Court
in
R.Vishwanatha
Pillai
(supra)
is
squarely not applicable to the situation in
the present case where an order of
termination has been passed against a
permanent
employee
without
even
convening a disciplinary inquiry on a
substantive charge of misconduct.

5. A counter affidavit was filed on
behalf of the State before the learned
Single Judge in which it was stated that a
letter dated 26 April 2004 was written by
the Special Secretary, Government of
U.P., in response to the letter of the
Principal Secretary dated 18 March 2004
instructing all the Chief Medical Officers
/ Superintendents of the Districts through
the
Director,
Medical
and
Health
Services, U.P., Lucknow to conduct a
verification of the appointments made and
to make available the information within
fifteen days of the receipt of the letter.
The Superintendent of Police, Vigilance
Department had written a letter to the
Chief Medical Officer, Chitrakoot to issue
instructions to Health Workers working
under him to be present at the Sector
Office on 23 July 2004 in respect of an
inquiry / investigation being done by the
concerned Inspector. Moreover, it was
stated that the Registrar, Uttar Pradesh
Nurses and Midwives Council, Lucknow
had also issued a letter dated 23 February
2010 to the Chief Medical Officer,
Chitrakoot informing him, in response to
a letter dated 10 February 2010, that the
registration certificate and the mark sheets
relating to the appellant are fabricated.

6. The admitted position before the
Court is that the appellant worked as a
Health Worker (Female) right from the
date of her appointment on 4 January
1990 until the order of termination which
was passed on 30 November 2010. Prior
to that, on 29 October 2010, a notice to
show cause was issued to the appellant
calling upon her to produce documentary
evidence for verification of the documents
within three days. Pursuant thereto, the
appellant appeared before the second
respondent and produced the documentary
material on which she placed reliance. No
charges were framed. No disciplinary
proceedings were held. The order of
termination dated 30 November 2010
states that the documents which were
submitted by the appellant in relation to
her training as an A.N.M. were got
verified from the U.P. State Medical
Health and Family Welfare Faculty
pursuant to a letter dated 10 February
2010. The Medical Faculty, as the letter
of termination states, had opined that the
documents which were found to have
been submitted by the appellant were
fabricated. No copy of the report of the
Medical Faculty was furnished to the
appellant nor she was given notice of such
finding before the order of termination
was passed.

7. On these facts, the learned Single
Judge, in our view, was clearly in error in
arrogating to the Court the task of
determining whether the certificate and
mark sheets submitted by the appellant were
140 INDIAN LAW REPORTS ALLAHABAD SERIES
genuine or otherwise. This, with respect,
was no part of the jurisdiction of the writ
Court under Article 226 of the Constitution.
When a substantive charge of misconduct is
levied against an employee of the State, the
misconduct has to be proved in the course
of a disciplinary inquiry. This is not one of
those cases where a departmental inquiry
was dispensed with or that the ground for
dispensing with such an inquiry was made
out.
The
U.P.
Government
Servants
(Discipline and Appeal) Rules, 1999 lays
down a detailed procedure in Rule 7 for
imposing a major penalty. Admittedly, no
procedure of that kind was followed since
no disciplinary inquiry was convened or
held.

8. The learned Single Judge has relied
upon a judgement of the Supreme Court in
R.Vishwanatha Pillai (supra). In that case,
the appellant was appointed to the Indian
Police Service on the basis of a scheduled
caste certificate. A full-fledged inquiry was
conducted by the Scrutiny Committee. The
order
of
the
Scrutiny
Committee
invalidating the caste claim was upheld both
before the High Court and the Supreme
Court. Due opportunity was given to the
appellant by the Scrutiny Committee to put
forth his defence. It was, in this background
that the Supreme Court held that issuance of
fresh notice under the Rules was not
necessary as the genuineness of the
certificate had already been examined by an
independent body constituted under the
direction of the Supreme Court in Kumar
Madhuri
Patil
vs.
Additional
Commissioner2. The observation of the
Supreme Court in paragraph 13 are as
follows:

"We do not find any substance in this
submission. The misconduct alleged against
the appellant is that he entered the service
against reserved post meant for the
Scheduled Caste/Scheduled Tribe on the
basis of a false caste certificate. While
appointing
the
appellant
as
Deputy
Superintendent of Police in the year 1977, he
was considered as belonging to the
Scheduled Caste. This was found to be
wrong and his appointment is to be treated as
cancelled. This action has been taken not for
any misconduct of the appellant during his
tenure as civil servant but on the finding that
he does not belong to the Scheduled Caste as
claimed by him before his appointment to the
post. As to whether the certificate produced
by him was genuine or not was examined in
detail by the KIRTADS and the Scrutiny
Committee constituted under the orders of
this Court. Appellant was given due
opportunity to defend himself. The order
passed by the Scrutiny Committee was
upheld by the High Court and later on by this
Court. On close scrutiny of facts we find that
the safeguards provided in Article 311 of the
Constitution that the Government servant
should not be dismissed or removed or
reduced in rank without holding an inquiry in
which he has been given an opportunity to
defend himself stands complied with. Instead
of departmental inquiry the inquiry has been
conducted by the Scrutiny Committee
consisting of three officers, namely, (I) an
Additional or Joint Secretary or any officer
higher in rank of the Director of the
department concerned, (II) The Director,
Social Welfare / Tribal Welfare / Backward
Class Welfare, as the case may be, and (III)
in the case of Scheduled Castes another
officer having intimate knowledge in the
verification and issuance of the social status
certifies, who were better equipped to
examine the question regarding the validity
or otherwise of the caste certificate. Due
opportunity was given to the appellant to putforth his point of view and defend himself.
The issuance of a fresh notice under the
1 All] State of U.P. Vs. Chandra Bose and Ors.
141
Rules for proving the same misconduct
which has already been examined by an
independent body constituted under the
direction of this Court, the decision of which
has already been upheld up to this Court
would be repetitive as well as futile. The
second safeguard in Article 311 that the
order of dismissal, removal and reduction in
rank should not be passed by an authority
subordinate to that by which he was
appointed has also been met with. The
impugned order terminating the services of
the appellant has been passed by his
appointing authority."

9. The facts of the present case are,
therefore, clearly distinguishable. The
charge of misconduct has to be duly
established. Since no disciplinary inquiry
was held, the charge was never proved.

10. In this view of the matter, we are of
the view that the judgement and order of the
learned Single Judge is unsustainable and the
special appeal would have to be allowed.
We, accordingly, allow the special appeal in
terms of the following directions:

(i) The judgement of the learned
Single Judge dated 24 September 2013 is
quashed and set aside;

(ii) In consequence, the order of
termination dated 30 November 2010
shall stand quashed and;

(iii) The respondents shall be at
liberty to hold a departmental inquiry in
respect of the allegation of misconduct
and take necessary action thereafter as
may be warranted in accordance with law.

11. There shall be no order as to
costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal (D) No. 115 of 2014

State of U.P..... Appellant
Versus
Chandra Bose and Ors.... Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya, C.S.C.

Counsel for the Respondents:
Sri Y.S. Saxena

U.P. Government Servant(Discipline and
Appeal Rules, 1999-Rule-4(c)-suspensionin contravention of statutory provision-at
dictation of concern minister-as
was
absent in program of minister-without
considering the cause of absence as he
was not relieved by its superior-entrusted
with task of distribution of laptop-not a
deliberate act or dereliction of dutyLearned Single Judge rightly quashedsuspension
order-observation
for
not
giving duty of his status wholly uncalled
far-as such order of Single Judge modifiedaccordingly amount of cost payable from
appellant shall be from state exchequerappeal disposed of.

Held: Para-10
We are cognisant of the fact that in
matters
of
suspension
pending
a
disciplinary inquiry, the intervention of the
Court, particularly under Article 226 of the
Constitution, must be rare. However, this
is one of those exceptional cases where
the intervention of the learned Single
Judge was manifestly required to prevent
what would otherwise have been a
complete miscarriage of justice. The order
of suspension was plainly in violation of
Rule 4(1) of the Rules. The authority which
passed the order of suspension acted at