# Smt. Renu Mishra v. State of U.P. & Ors. 1698 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 2 ILRA 1697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-12
- **Case number:** Wrti A No. 19592 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-renu-mishra-v-state-of-u-p-ors-1698-indian-law-reports-allahabad-series-45218
- **Pages:** 7

## Headnote

A. Service Law - dismissal - Uttar
Pradesh Government Servants (Discipline
and Appeal) Rules, 1999 - Rule 11 -
appeal - Commissioner placed restricted
construction - on the provisions of subRule (2) of Rule 11 - arbitrary and
discriminatory - violation of Article 14 of
the
Constitution
-
defeat
the
very
purpose for which a departmental appeal
has been provided from orders of the
Disciplinary
Authority
-
well
settled
cannon of statutory construction - if a
statute is capable of being interpreted in
two ways - one that exposes it to the vice
of
unconstitutionality
should
be
eschewed - statute (including statutory
Rules) ought to construed in a manner
that renders it constitutionally valid -
unless that construction is impossible on
the terms of it - order 16.08.2019 passed
by respondent no.2, the Commissioner -
quashed.(Para8)

Petition is directed against an order passed by
respondent no.2, the Commissioner, declining
to entertain an appeal against the order passed
by respondent no.3, the District Magistrate,
whereby the petitioner's husband who was
employed as a Copyist in Tehsil , was dismissed
from service. (Para-1)

Held :- If a Government servant dies post the
order passed by the Disciplinary Authority, it is
certainly
open
to
his
heirs
and
legal
representatives
to
whose
benefit
the
consequences of that order being set aside by
the Appellate Authority would go, to move an
Appeal and question the order passed by the
Disciplinary Authority . (Para-8)

Writ Petition allowed. (E-7)

List of cases cited:-

## Text

2 All. Smt. Renu Mishra Vs. State of U.P. & Ors.
1697
Court in Steel Authority of India (supra) would
be to approach the Industrial Adjudicator,
where all issues of facts can be examined by
the competent forum with reference to the
applicable provisions of law. The powers of
Industrial Adjudicator are otherwise extremely
wide by virtue of Section 11-A of the
Industrial Disputes Act, 1947.

20. Coming to the Division Bench
judgment of this Court in Special Appeal
No. 790 of 2018, it transpires that facts
had been adverted to by this Court in
Special
Appeal
and
the
plea
of
alternative remedy came to be rejected.
The respondents plea based upon a later
judgment of the Apex Court in the case
of Balwant Rai Saluja v. Air India Ltd.,
(2014) 9 SCC 407 was also rejected.

21. The judgment of the Apex
Court in Balwant Rai Saluja (supra) was
delivered by the Apex Court in a matter
relating to canteen employees upon
whom the provisions of Section 46 of the
Factories
Act
were
applicable.
Provisions of the Factories Act required
the management to set up a canteen. The
Apex Court distinguished the previous
judgment in the case of Steel Authority
of India (supra) as the employees of
statutory canteen were distinctly placed
in the statutory scheme. This judgment
apparently would have no applicability
in the facts of the present case since
petitioners are not the employees of
statutory
canteen.
The
Constitution
Bench Judgment in Steel Authority of
India (supra), however, was not placed
before the Division Bench in special
appeal no. 790 of 2018. In light of what
has been observed above, as also the
lack of specific pleading on the part of
the petitioners with regard to the nature
of their engagement and continuance
etc., I am not inclined to entertain
petitioners grievance directly in this writ
petition by passing the law laid down by
Constitution Bench in the case of Steel
Authority of India Ltd. (supra).

22. In the aforesaid factual
backdrop, this Court is of the considered
opinion that petitioners' be relegated to
the remedy of approaching Industrial
Adjudicator in light of the law laid down
by the Apex Court in the case of Steel
Authority
of
India
Ltd.
(supra).
However, in the facts of the present case
it would be appropriate to direct the
State Government to forthwith refer
petitioners' claim to the appropriate
Industrial Adjudicator for proceedings to
be concluded at the earliest.

23. Writ petition, accordingly, fails
and
is
dismissed.
It
is,
however,
provided
that
in
case
petitioners
approach the appropriate authority of the
State, their claim shall be referred to the
appropriate
Industrial
Adjudicator,
forthwith.
The
concerned
Industrial
Adjudicator shall make all endeavours to
conclude the proceedings, at the earliest
possible, without granting unnecessary
adjournment except on payment of costs,
by fixing early dates. In the facts of the
case parties shall bear their own costs.
----------
(2020)02ILR A1698

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Wrti A No. 19592 of 2019

Smt. Renu Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1698 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Sheetala Prasad Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - dismissal - Uttar
Pradesh Government Servants (Discipline
and Appeal) Rules, 1999 - Rule 11 -
appeal - Commissioner placed restricted
construction - on the provisions of subRule (2) of Rule 11 - arbitrary and
discriminatory - violation of Article 14 of
the
Constitution
-
defeat
the
very
purpose for which a departmental appeal
has been provided from orders of the
Disciplinary
Authority
-
well
settled
cannon of statutory construction - if a
statute is capable of being interpreted in
two ways - one that exposes it to the vice
of
unconstitutionality
should
be
eschewed - statute (including statutory
Rules) ought to construed in a manner
that renders it constitutionally valid -
unless that construction is impossible on
the terms of it - order 16.08.2019 passed
by respondent no.2, the Commissioner -
quashed.(Para8)

Petition is directed against an order passed by
respondent no.2, the Commissioner, declining
to entertain an appeal against the order passed
by respondent no.3, the District Magistrate,
whereby the petitioner's husband who was
employed as a Copyist in Tehsil , was dismissed
from service. (Para-1)

Held :- If a Government servant dies post the
order passed by the Disciplinary Authority, it is
certainly
open
to
his
heirs
and
legal
representatives
to
whose
benefit
the
consequences of that order being set aside by
the Appellate Authority would go, to move an
Appeal and question the order passed by the
Disciplinary Authority . (Para-8)

Writ Petition allowed. (E-7)

List of cases cited:-

1. Marimuthu (K.P.) (deceased) (by legal
representatives) and others vs. Superintendent
of Police, Dharmapuri and others, (1985) 2 LNN
762

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against an
order dated 16.08.2019 passed by respondent
no.2, the Commissioner, Basti Division, Basti
declining to entertain an appeal against the
order dated 09.07.2015 passed by respondent
no.3, the District Magistrate, Basti, whereby
the petitioner's husband who was employed as
a Copyist in Tehsil Bhanpur, District Basti,
was dismissed from service.

2. The order dated 09.07.2015 was
challenged before this Court by the petitioner's
husband, Akhilesh Kumar Mishra, vide Writ -
A No.53587 of 2017. The said writ petition
was dismissed on the ground that an alternative
remedy of appeal under Rule 11 of the Uttar
Pradesh Government Servants (Discipline and
Appeal) Rules, 1999 was available. The
aforesaid order was passed in the writ petition
on 16.11.2017. The petitioner's husband
passed away on 02.12.2017 as he was
suffering from cancer. The petitioner preferred
an Appeal under Rule 11 of the Uttar Pradesh
Government Servants (Discipline and Appeal)
Rules, 1999 on 07.02.2018 raising various
grounds of fact and law, and asking the order
of dismissal passed against her husband to be
set aside in her right of an heir and legal
representative of the deceased employee,
Akhilesh Kumar Mishra. The said Appeal has
been dismissed by means of the impugned
order dated 16.08.2019 on ground that the said
Appeal is not maintainable under Rule 11(2) of
the Uttar Pradesh Government Servants
(Discipline and Appeal) Rules, 1999 as the
Appeal has been preferred by the deceased
employee's wife.

3. On 15.12.2019, the following
order was passed:
2 All. Smt. Renu Mishra Vs. State of U.P. & Ors.
1699

"Sri
Dinesh
Singh,
learned
Standing Counsel appears on behalf of all
the respondents and is granted a week's
time to seek instructions specifically
showing
cause
as
to
how
the
Commissioner, Basti Division Basti, has
held an appeal filed by a deceased
employee's wife against his dismissal from
service as not maintainable.

Lay
as
fresh
again
on
12.12.2019."

4. Dr. Amar Nath Singh, learned
Standing Counsel along with Sri Sharad
Chandra Upadhyay, learned State Law
Officer on behalf of the State has produced
written
instructions
that
they
have
received. The instructions are signed by
Anil Kumar Sagar, Commissioner, Basti
Division, Basti. He has done little more
than to paraphrase the provisions of Rule
11(2) of the Uttar Pradesh Government
Servants (Discipline and Appeal) Rules,
1999, and on that basis has put forward a
case that the said sub-Rule envisages an
Appeal under the Rules being available to
the Government servant concerned, and
not to a member of his family.

5. Rule 11 of the Uttar Pradesh
Government Servants (Discipline and
Appeal) Rules, 1999 are quoted in
extenso:

"Appeal- (1) Except the orders
passed under these rules by the Governor,
the Government servant shall be entitled to
appeal to the next higher authority from an
order
passed
by
the
Disciplinary
Authority.

(2)
The
appeal
shall
be
addressed and submitted to the appellate
authority.
A
Government
servant
preferring an appeal shall do so in his own
name. The appeal shall contain all material
statements and arguments relied upon by
the appellant.

(3) The appeal shall not contain
any intemperate language. Any appeal,
which contains such language may be
liable to be summarily dismissed.

(4) The appeal shall be preferred
within 90 days from the date of
communication of impugned order. An
appeal preferred after the said period shall
be dismissed summarily."

6. Sub-Rule (2) of Rule 11 is a
provision that regulates the exercise of the
right of Appeal by a Government servant
aggrieved by an order made by the
Disciplinary Authority against him. It
prescribes the procedure and the manner of
exercise of that right. Sub-Rule (1) of Rule
11 by contrast envisages that every order
passed by a Disciplinary Authority shall be
appealable by a Government servant,
except an order passed by the Governor.
The right to Appeal provided from an
order of the Disciplinary Authority to a
Government servant flows from sub-Rule
(1) of Rule 11, whereas sub-Rules (2), (3)
and (4) detail the procedure for exercise of
that right. Rule 11 envisages a situation
where a Government servant, who is alive
and about, is aggrieved by an order of the
Disciplinary Authority, and it is in that
situation that the Government servant
alone has been given the right to prefer an
Appeal from the order of the Disciplinary
Authority. Sub-Rule (2) of Rule 11, where
it says that
a Government servant
preferring an Appeal shall do so in his own
name, to borrow the phraseology of the
statute, is designed to eschew those
situations
where
on
behalf
of
a
Government servant, members of the
family come forward, and carry Appeals
from orders of the Disciplinary Authority.
Rule 11(2), however, does not envisage or
1700 INDIAN LAW REPORTS ALLAHABAD SERIES
intend that the right to Appeal from an
order of the Disciplinary Authority should
be
lost
to
his
heirs
and
legal
representatives, where they would be
beneficiaries, in case the order passed by
the Disciplinary Authority were to be set
aside in Appeal, in an eventuality where
the Government servant is no more. An
appeal by the heirs of the deceased
government servant from an order of the
Disciplinary Authority, is an appeal in the
same right as that of the government
servants that survives to his heirs. It is
very different from the exercise of a right
to appeal by proxy on behalf of the
government servant while he is alive and
around. It is in the latter kind of case that
sub-rule (2) of Rule 11 debars anyone but
the government servant concerned from
appealing a decision of the Disciplinary
Authority; the prohibition there bears no
reference to the former contingency.

7. Though, in the context of a
petition under Article 226 vis-a-vis rights
of the heirs of a deceased government
servant who had challenged his dismissal
from service but died pendente lite, to
prosecute a writ petition against the order
of dismissal from service, albeit for the
relief of all monetary benefits that the
deceased government servant would be
entitled to, except reinstatement, it was
held by a Division Bench of the Madras
High
Court
in
Marimuthu
(K.P.)
(deceased) (by legal representatives) and
others vs. Superintendent of Police,
Dharmapuri and others, (1985) 2 LNN
762:

"15. It is undoubtedly true that if
a relief of reinstatement is to be asked,
such a relief will be personal to the
Government servant concerned and if a
Government servant dies, the personal
action in respect of this personal relief will
also abate. The maxim actio personalis
moritur cum persona is, however, as
pointed
by
the
Supreme
Court
in
Girijanandini v.Bijendra Narain, [A.I.R.
1967 S.C. 1124], of a very limited
application. In Para. 14 of the judgment,
the Supreme Court observed as follows:

"... The maxim actio personalis
moritur cum persona a personal action
dies with the person, has a limited
application. It operates in a limited class of
action, ex delicto such as actions for
damages, for defamation, assault or other
personal injuries not causing the death of
the party, and in other actions where after
the death of the party the relief granted
could not be enjoyed or granting it would
be nugatory".

The maxim, therefore, applies
among other cases to a case where after
the death of the party the relief granted
could not be enjoyed or granting it would
be nugatory. A relief of reinstatement
undoubtedly cannot be granted after the
death of a Government servant because if
it is granted, it would be nugatory because
the person who is reinstated in service is
no more alive. Therefore, while it could be
said that the doctrine that a personal action
dies with the person is true in the case of
relief of reinstatement, in the case of other
reliefs such as salary that would have been
earned and the benefits which would have
accrued if the order of dismissal would not
have been made, they cannot be said to
abate on the ground that these are personal
actions. It would also not be correct to
characterise the relief of arrears of salary
and the relief which the dependants of the
deceased Government servant could claim
under the Pension Rules as consequential
reliefs. The relief of arrears of salary is a
substantive relief in view of the fact that it
is not necessary to ask for an order of
2 All. Smt. Renu Mishra Vs. State of U.P. & Ors.
1701
reinstatement. We are not, therefore,
inclined to take the view that a writ
petition filed by a Government servant for
setting aside his dismissal cannot be
prosecuted by his legal representative in
view of the benefits which the legal
representatives would be entitled to have
as a result of the setting aside of the order
of dismissal. We are supported in the view
which we have taken by the decisions of
the Gujarat, Punjab and Haryana and the
Kerala High Court referred to above, on
which
the
learned
counsel
for
the
appellants has relied. We will shortly refer
to those decisions. Before that, we may
refer to the decision of the Supreme Court
in State of Uttar Pradesh v. Mohammed
Sharif, [1982 - II L.L.N. 408](vide supra),
relied upon by the appellants. This short
decision
shows
that
a
dismissed
Government servant had filed a suit
challenging his dismissal on the ground
that the said order was illegal and void.
The suit was dismissed. This decree was
reversed by the appellate Court. The State
appealed against the decree of the first
appellate Court, but the appeal was
dismissed. The State Government then
filled an appeal to the Supreme Court.
While upholding the judgment of the first
appellate Court and the High Court that
the
plaintiff
was
denied
reasonable
opportunity to defend himself at the
disciplinary enquiry, some observations
were made to the effect that the plaintiff
had died during the pendency of the
proceedings. It is not very clear as to at
what stage the plaintiff had died. The only
observations made and which are relied
upon by the learned counsel for the
appellants before us are as follows in Para.
3, at page 409 of 1982-II L.L.N.:

"...Since the plaintiff has died
during the pendency of the proceedings the
only relief that would be available to the
legal heirs of the deceased is the payment
of arrears of salary and other emoluments
payable to the deceased".

This decision does not seem to be of
much assistance to us.

16. In Ibrahimbhai v. State, [A.I.R.
1968 Guj. 202], a Division Bench of the
Gujarat High Court has taken the view that the
legal representatives of a petitioner who had
filed a petition under Art. 226 for a declaration
that the order of reversion of the petitioner was
null and void were entitled to prosecute the
petition because if the reversion was held void,
the petitioner would have been entitled to a
salary on an enhanced scale. The Division
Bench took the view that the order of reversion
had resulted in pecuniary loss to the original
petitioner and after his death, the present
petitioners were entitled to the estate of the
deceased and hence the right of the present
petitioners was also effected and they were,
therefore, aggrieved parties. This decision of
the Gujarat High Court, was followed by the
Punjab and Haryana High Court in Manmohan
Anand v. State of Punjab, [1972 S.L.R. 852].
The original petitioner before that Court had
filed a petition under Art. 226 of the
Constitution challenging an order, dated 6
June, 1970, by which the Governor of Punjab
had removed the petitioner from the Office of
the Chairman and non-official Member of the
Punjab Khadi and Village Industries Board.
The petitioner died on 30 October, 1970,
leaving behind his widow, married daughters
and a son. The question was whether the legal
representatives were entitled to continue the
proceedings.
On
behalf
of
the
State
Government, reliance was placed on the
decision of this Court in Vridhachalam case,
[A.I.R. 1966 Mad. 260] (vide supra). The
Division Bench dissented from the view
taken inVridhachalam case (vide supra),
and observed as follows:

"... If the Government passes an
unconstitutional or a wrong or a void
1702 INDIAN LAW REPORTS ALLAHABAD SERIES
order, which is sought to be declared null
and void by the Court, it is no legal right
of the Government to say that the order
should not be annulled merely because in
the
changed
circumstances
the
Government would not be able to pass a
fresh order in accordance with law. In case
of an annulment of an order of removal or
dismissal from service, the fresh order
cannot possibly be passed retrospectively
but can take effect only from the date on
which such on order is passed. If the
delinquent official is dead before the
annulment of the previous order, there is
nobody in existence against whom a fresh
order can be passed. Moreover any
difficulty
of
the
defendant
or
the
respondent which is of his own creation
cannot in my opinion take away the legal
rights of heirs of a deceased to claim
emoluments to which the deceased would
have been entitled if the order of his
removal or dismissal from service were
found to be illegal".

It was conceded before the
Division
Bench
that
the
legal
representatives of the original petitioner
can institute a suit claiming emoluments to
which the original petitioner would have
been entitled for the period commencing
from 6 June, 1970, the date of his
purported removal, to the date of his death.
After referring to this concession, the
Division Bench further observed as
follows:

"... Once this is granted it goes
without saying that no such claim can be
decreed unless it is first held that the
purported order of removal of the original
petitioner from the membership and the
chairmanship was illegal and ineffective.
This is the basic relief without obtaining
which no claim of the legal representatives
for salary or emoluments can succeed. It is
that basic relief which is being claimed in
the present petition. To that extent,
therefore, the right to sue survives to the
legal representatives. If the original
petitioner had claimed declaration to the
effect that he continues in service or had
asked for a mandamus for being issued to
the respondents, I would have held that
right to claim such relief was personal to
the deceased and died with him and that
the right to sue in respect of those reliefs
did
not
survive
to
the
legal
representatives..."

The Division Bench of the
Punjab and Haryana High Court, therefore,
took the view that the legal representatives
of a deceased Government servant were
entitled to prosecute a petition challenging
the validity of the dismissal order."

8. If a Government servant dies post
the order passed by the Disciplinary
Authority, it is certainly open to his heirs
and legal representatives to whose benefit
the consequences of that order being set
aside by the Appellate Authority would
go, to move an Appeal and question the
order
passed
by
the
Disciplinary
Authority. To place the kind of restricted
construction that the Commissioner has
done on the provisions of sub-Rule (2) of
Rule 11 would work to defeat the very
purpose for which a departmental appeal
has been provided from orders of the
Disciplinary Authority. It also does not
appear to be the intendment of Rule 11
that for the same relief the Government
servant, if alive would have the remedy of
an Appeal to the Departmental Appellate
Authority, but his heirs who are entitled in
law to question the validity of the order
passed by the Disciplinary Authority,
would be required to do so by invoking the
extraordinary jurisdiction of this Court, or
resort to some other judicial remedy. This
construction if placed on the provisions of
2 All. Smt. Krishna Srivastava Vs. State of U.P. & Ors.
1703
Rule 11(2) of the Uttar Pradesh Government
Servants (Discipline and Appeal) Rules, 1999,
would expose it to the peril of being arbitrary
and discriminatory and in violation of Article
14 of the Constitution. It is a well settled
cannon of statutory construction that if a statute
is capable of being interpreted in two ways, the
one that exposes it to the vice of
unconstitutionality should be eschewed. The
statute (including statutory Rules) ought to
construed in a manner that renders it
constitutionally valid; unless that construction
is impossible on the terms of it.

9. This Court does not find that Rule 11(2)
is incapable of that construction where the wife of
a deceased Government servant, who is entitled
to claim the benefits that would flow in case the
order passed against him by the Disciplinary
Authority were set aside, is contemplated to be
excluded from exercising the right of Appeal.

10. In this view of the matter, this writ
petition succeeds and is allowed. The impugned
order 16.08.2019 passed by respondent no.2, the
Commissioner, Basti Division, Basti is hereby
quashed. The Commissioner, Basti Division,
Basti is ordered to decide the petitioner's Appeal,
dated 07.02.2018 afresh in accordance with law
on merits within a period of six weeks from the
date of receipt of a certified copy of this
judgment.

11. There shall be no order as to costs.
----------
(2020)02ILR A1703

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE
THE HON'BLE PIYUSH AGRAWAL, J.

Writ A No. 25338 of 2016

Smt. Krishna Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Dileep
Kumar
Mishra,
Sri
R.S.
Upadhyay

Counsel for the Respondents:
C.S.C., Sri Arun Kumar, Sri Anoop Kumar

A. Natural Justice - no recovery can be
made from a retired employee without
providing an opportunity of hearing - it is
impermissible
to
recover
the
extra
payment made for a period in excess of
five years before the order of recovery is
issued (para 11)

Writ Petition allowed.
List of cases cited:

1. State of Punjab and ors V. Rafiq Masih
(White Washer) and ors (2015) 4 SCC 332
(followed)

2. Brijendra Kumar Tripathi & ors V. State of
U.P. & ors 2019 (4) ADJ 690 (LB) (followed)
(Delivered by Hon'ble Piyush Agrawal, J.)

1. This writ petition has been filed,
inter alia, for the following reliefs:-

"(i) Issue a writ, order or
direction in the nature of mandamus
commanding and directing the respondent
no. 4to refund the illegally deducted
amount of Rs. 3,74,745/- from G.P.F. of the
petitioner with interest."

2. Heard learned counsel for the
petitioner, learned standing counsel for the
State - respondents and Shri Anoop
Kumar, holding brief of Shri Arun Kumar,
learned counsel for the respondent nos. 4,
5 & 6.