# Sohan Lal v. U.P. Co-operative Federation Ltd. & Another

- **Citation:** (2013) 1 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sohan-lal-v-u-p-co-operative-federation-ltd-another-42477
- **Pages:** 6

## Headnote

(A) Constitution of India , Article
226-Civil
consequences-alteration
of
date of birth in service book-without
notice opportunity-retiring 6 years prior
to actual date of retirement-entails civil
consequences-order impugned can not
sustain.

Held: Para-15

The Court is of the opinion that any
change in the service book of the
petitioner entails civil consequences and
consequently, it is imperative that if any
change in the date of birth is made, the
same can only be done after giving
notice and an opportunity of hearing to
the employee concerned. In the instant
case, this has not been done. The action
of the respondents, in changing the date
of
birth,
was
wholly arbitrary
and
without any authority of law.

(B) "No Work No Pay"-principle
when
applicable-explained-wrongful
premature
retirement-no
fault
of
petitioner-50 % saalry for the period not
allowed to work-proper-arrear of salary
without deduction of income tax be paid.

Held: Para-18

 Considering the fact that the petitioner
has wrongly been retired coupled with
the fact that the principle of ''no work
and no pay' is also applicable, but, in the
instant case, the fault solely lay with the
respondents in wrongfully retiring the
petitioner, the Court is of the opinion,
that 50% of the salary should be paid to
the petitioner.

## Text

1 All] Sohan Lal Vs. U.P. Co-operative Federation Ltd. & Another
273

32. In our view the submission is
thoroughly misconceived. From perusal
of charge sheet it cannot be doubted that
the charges, if have been proved,
petitioner could have been liable to be
awarded a major penalty. The competent
authority also proceeded with an intention
that charges, if proved, may result in
major penalty and it is for this reason
earlier he was suspended and then he
appointed
an
Inquiry
Officer.
Appointment of Inquiry Officer for
holding oral inquiry shows the intention
of the disciplinary authority that the
employee may suffer major penalty. In
those cases where oral inquiry is
necessary i.e. cases of major penalty,
inquiry officer is ordinarily appointed
otherwise simply by issuing a charge
sheet and receiving reply, a minor penalty
could have been awarded, which is not the
case here.

33. The intention of disciplinary
authority is further clear from the fact that
petitioner was placed under suspension.
Suspension is permissible only when
charges are so serious so as to attract
major penalty. Besides, even the show
cause notice issued to petitioner proposed
a major penalty.

34. We are clearly of the view that
the ultimate result shall not govern the
manner
of
preceding
disciplinary
proceedings inasmuch as the authorities,
if found no proof of serious charges to
justify major penalty, therefore, imposed
minor penalty, it would not distract from
the fact that proceedings were initiated for
major
penalty
and
despite
denying
adequate
opportunity
to
delinquent
employee, i.e., by not holding oral
inquiry, he was able to show shallowness
of charges which satisfy the disciplinary
authority that major penalty is not
warranted. If adequate opportunity would
have
been
afforded
to
delinquent
employee, he could have demonstrated
that no penalty whatsoever is liable to be
inflicted upon him, since, the charges in
entirety, are baseless etc. It is the
inception of proceedings which will
govern
the
manner
of
disciplinary
proceedings to be conducted and not the
ultimate result. Therefore, mere fact that
lastly only minor penalty could have been
inflicted upon petitioner, would not dilute
his legal right that disciplinary inquiry
when initiated must have been held in
conformity with procedure prescribed,
attracting provisions, applicable at the
inception of inquiry.

35. After careful consideration of
the facts we are of the view that the
disciplinary proceedings are vitiated for
the aforestated reasons. The impugned
order
dated
29.8.2000
passed
by
respondent no.2 herein is liable to be
quashed. Accordingly it is quashed.

36. However, the order shall not
preclude the disciplinary authority from
proceeding afresh in the light the
observations made hereinabove and in
accordance with law.

37.
With
the
aforesaid
directions/observations and in the manner,
as above, this writ petition is allowed. No
costs.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.
274 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
CIVIL MISC. WRIT PETITION NO. 49773
of 2006

Khayat Singh

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

Counsel for the Petitioner:
Sri N.C. Srivastava
Sri L.C. Srivastava

Counsel for the Respondents:
C.S.C.
Sri Shashank Shekhar Singh

(A) Constitution of India , Article
226-Civil
consequences-alteration
of
date of birth in service book-without
notice opportunity-retiring 6 years prior
to actual date of retirement-entails civil
consequences-order impugned can not
sustain.

Held: Para-15

The Court is of the opinion that any
change in the service book of the
petitioner entails civil consequences and
consequently, it is imperative that if any
change in the date of birth is made, the
same can only be done after giving
notice and an opportunity of hearing to
the employee concerned. In the instant
case, this has not been done. The action
of the respondents, in changing the date
of
birth,
was
wholly arbitrary
and
without any authority of law.

(B) "No Work No Pay"-principle
when
applicable-explained-wrongful
premature
retirement-no
fault
of
petitioner-50 % saalry for the period not
allowed to work-proper-arrear of salary
without deduction of income tax be paid.

Held: Para-18

 Considering the fact that the petitioner
has wrongly been retired coupled with
the fact that the principle of ''no work
and no pay' is also applicable, but, in the
instant case, the fault solely lay with the
respondents in wrongfully retiring the
petitioner, the Court is of the opinion,
that 50% of the salary should be paid to
the petitioner.

(Delivered by Hon'ble Tarun Agarwala,J.)

1. Heard Sri N.C.Srivastava, the
learned counsel for the petitioner and the
learned standing counsel.

2. The present writ petition has been
filed for the quashing of the order dated
16.1.2006
whereby
the
Executive
Engineer informed the petitioner that he
would retire w.e.f. 30.11.2006 as well as
the order dated 29.7.2006 by which the
representation of the petitioner was
rejected by the Engineer-in-Chief.

3. The facts leading to the filing of
the writ petition, as culled out from the
affidavit that has been filed before the
Court and the original service register that
has been produced today is, that the
petitioner was appointed on 18.11.1977 in
the Irrigation Department. The Service
Book of the petitioner was prepared in the
year 1987 and, at that stage, the
petitioner's age was recorded as 31 years.
In 1987 the petitioner was directed to
appear before the Chief Medical Officer
with regard to the verification of his date
of birth. The petitioner appeared and the
Chief Medical Officer, on the basis of his
medical examination, issued a certificate
dated 1.9.1987 indicating that as on
1.9.1987 the age of the petitioner was 35
years. On the basis of this certificate, the
entry of 31 years in the service register
was deleted and was substituted by the
words "thirty-five years as on 1.9.1987
according to the C.M.O., Bijnore". The
original service book indicates that the
petitioner as well as the Assistant
1 All] Khayat Singh Vs. State of U.P. and others
275
Engineer both have signed on 26.4.1996
acknowledging the aforesaid entry with
regard to the date of birth.

4. On the basis of the entry made in
the Service Book indicating that the
petitioner's age is 35 years as on 1.9.1987,
the date of birth would be 1st September,
1952. The age of superannuation of a
Class-IV employee in government service
is 60 years and consequently, the
petitioner would reach the age of
superannuation on 1.9.2012.

5. It transpires that some audit
objections were reported for the year
2002-03 with regard to the entries of the
date of birth in the Service Book of the
petitioner and, on the basis this audit
objection,
the
Executive
Engineer
instituted an inquiry by constituting a
Committee. It further transpires that the
committee submitted a report indicating
that, on the basis of an application form
alleged to have been written under the
signature of the petitioner, his date of
birth at the time of his appointment was
31 years and therefore, his date of birth
should be 18th November, 1946. Based
on this inquiry report, the Executive
Engineer passed an order dated 19.4.2004
holding that the petitioner's date of birth is
18th November 1946.

6. The order of the Executive
Engineer dated 19.4.2004 is pasted in the
service book of the petitioner, which
indicates that a copy of the said order was
earmarked to the petitioner but nothing
has been brought on record to indicate
that the said order was duly served upon
the petitioner.

7. Taking 18.11.1946 to be the date
of birth of the petitioner, the Executive
Engineer issued a notice dated 16.1.2006
intimating the petitioner that he would
retire on 30.11.2006. The petitioner
represented, contending that the date of
birth as 18th November, 1946 is incorrect
and that his date of birth is 1st September,
1952 and therefore, he could not retire on
13th November, 2006. His representation
fell on deaf ears and accordingly, the
petitioner filed Writ Petition No.2750 of
2006, which was disposed of by an order
dated 18th May, 2006 directing the
Engineer-in-Chief
to
decide
the
representation of the petitioner. Based on
the said direction, the Engineer-in-Chief
rejected
the
representation
of
the
petitioner by the impugned order dated
29.7.2006.
The
petitioner,
being
aggrieved by the aforesaid order, has filed
the present writ petition.

8. Counter affidavit and rejoinder
affidavit have been exchanged and, when
the matter was being heard, the Court was
unable to get a clear picture and
accordingly directed the respondents to file
a legible copy of the Service Book of the
petitioner. The Court, in this regard, passed
orders dated 16.10.2012, 19.11.2012 and
11.12.2012. Inspite of these orders being
passed, which the learned standing counsel
had communicated to the respondent No.2
as well as to the other authorities, the
legible copy of the service record was not
filed. Consequently, by an order dated
15.1.2013,
the
Court
directed
the
respondent No.2, i.e., the Engineer-inChief,
Work
Charge
Establishment,
Irrigation Department Lucknow, to appear
in person along with his explanation as to
why action be not taken against him for
non-compliance of the order of the Court.
A copy of this order was given to the
learned Standing Counsel for necessary
communication.
276 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

9. Inspite of the aforesaid order, the
Engineer-in-Chief did not appear on
31.1.2013 nor filed a legible copy of the
service record. The Court had no choice
but to issue a non-bailable warrant
through the Chief Judicial Magistrate,
Lucknow to secure the presence of the
Engineer-in-Chief, on the date fixed, i.e.,
today.

10. The report of the Chief Judicial
Magistrate, Lucknow indicates that the
non-bailable
warrant
could
not
be
executed as the Engineer-in-Chief had left
for Allahabad. Today, when the matter
was taken up, the Engineer-in-Chief was
present in the Court and, on his behalf, an
exemption application along with an
affidavit has been filed. A supplementary
affidavit has also been filed annexing the
copy of the service book of the petitioner.
Both are taken on record. The Court
directed the Registrar General to take the
Engineer-in-Chief in custody and again
produce him after lunch at 2.15 p.m.
which was duly done.

11. The Court has heard the learned
counsel for the petitioner and the learned
standing counsel at some length. The
Court has also perused the application for
exemption of the petitioner and the
affidavit accompanying it. Nothing has
been stated by the Engineer-in-Chief that
he was not aware of the orders of the
Court dated 16.10.2012, 19.11.2012 and
11.12.2012 by which the Court had
directed the respondents to file a legible
copy of the service record of the
petitioner. Further, the Engineer-in-Chief
admits in paragraph 7 of the affidavit that
the order dated 15.1.2013 requiring him to
appear in person on 31.1.2013, was duly
received in his office on 17.1.2013. The
Engineer-in-Chief,
in
paragraph
11,
further indicated that he conducted an
inspection
of
a
Canal
Bridge
on
31.1.2013, thereby contending that on
account of this inspection he could not
appear before the Court.

12. The Court is constrained to
observe, that the Engineer-in-Chief chose
deliberately not to appear and, on the
other hand, chose to inspect a Canal
Bridge, which amounts to contempt in the
face of the Court, i.e., contempt which the
Judge sees with his own eyes for which it
requires no evidence or witness and which
the Judge can deal with it himself at once.
For this, the Court has the power to
imprison the person without trial, which is
necessary in order to maintain law and
order, inasmuch as, the course of justice
must not be deflected or interfered with
by those who strike it or strike it at a very
foundation of our society and, therefore,
this Court is of the opinion, that the Judge
must have the power at once to deal with
those who offended it. This power of
summary punishment is a necessary
power so as to maintain the dignity and
authority of the Court.

13. No one is above the law. The
dignity and authority of the Court cannot
be allowed to be tarnished, diminished or
wiped out by contumacious behaviour of
any person and, the only weapon for the
Court to protect itself is, the long arm of
the Contempt of Court. Whoever tends to
undermine the authority of law and bring
it in disrepute will come within the
purview of the contempt proceedings and
the exercise of this power is not to
vindicate the dignity of the Judge, but to
uphold the majesty of the law and of the
administration of justice.
1 All] Khayat Singh Vs. State of U.P. and others
277

14. In the instant case, the Court
finds that the action of the Engineer-inChief is totally contumacious. He has
shown scant regard to the orders of the
Court. Inspite of repeated direction, he did
not file the service record nor appeared in
person when directed. Consequently, the
petitioner is guilty of Contempt of the
Court. At this stage, the Court can punish
him and send him to jail if required, but
will not do so. The Court has a large heart
and is magnanimous and will not be
cowed down by the action of the
respondent. There are other means by
which the respondents could be penalized
which the Court will deal with at a later
stage.

15. Coming to the merits of the case,
the Court finds that pursuant to the
certificate issued by the Chief Medical
Officer, the petitioner's date of birth was
recorded in the service book in the year
1987 and the signatures of the petitioner
and the Assistant Engineer were recorded
again in the service book in 1994. The
action of the respondents in retiring the
petitioner w.e.f. 30.11.2006 is based upon
the order of the Executive Engineer dated
19.4.2004. The Court is of the opinion,
that the action taken by the respondent
was patently erroneous and arbitrary. The
Court finds that no opportunity or notice
was given to the petitioner by the
Executive Engineer before passing the
order dated 19.4.2004. The inquiry
proceeding was done behind the back of
the petitioner. It is not known as to
whether the order of the Executive
Engineer dated 19.4.2004 was ever
communicated to the petitioner. The
Court is of the opinion that any change in
the service book of the petitioner entails
civil consequences and consequently, it is
imperative that if any change in the date
of birth is made, the same can only be
done
after
giving
notice
and
an
opportunity of hearing to the employee
concerned. In the instant case, this has not
been done. The action of the respondents,
in changing the date of birth, was wholly
arbitrary and without any authority of
law.

16. In the light of the aforesaid, the
impugned notice dated 16.1.2006 and the
order dated 29.7.2006 rejecting the
representation of the petitioner cannot be
sustained and is quashed. The writ
petition is allowed.

17. The question is, what relief the
petitioner can be granted at this stage. If
the petitioner had continued in service on
the basis of the original entry indicating
that he was 35 years as on 1.9.1987, the
petitioner would have continued to work
till 1.9.2012. Consequently, as on date,
the petitioner cannot be reinstated. The
only relief which the Court can grant is to
compensate him in terms of money for the
loss which he has suffered with regard to
his salary. It has been stated that at the
time when the petitioner had retired, he
was getting a salary approximately @
Rs.9000/- per month. The actual amount
is not before the Court.

18. Considering the fact that the
petitioner has wrongly been retired
coupled with the fact that the principle of
''no work and no pay' is also applicable,
but, in the instant case, the fault solely lay
with the respondents in wrongfully
retiring the petitioner, the Court is of the
opinion, that 50% of the salary should be
paid to the petitioner.

19. Consequently, a writ of
mandamus is issued commanding the
278 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
respondent Nos.2 and 3 to calculate the
wages payable to the petitioner from the
date of his retirement on 30.11.2006 till
1.9.2012 out of which 50% shall be paid
to the petitioner within six weeks from
today. The petitioner's length of service
would be calculated keeping in mind that
he would retire on 1.9.2012 and all post
retirement dues, etc. would be recalculated on that basis within the same
period. Arrears, if any,would be paid
accordingly within two months thereafter.
In the event, the respondents are required
to deduct income tax on the arrears of
salary, the same shall not be deducted
from the 50% of wages, but the
component toward the income tax would
be paid by the respondents to the income
tax authorities in addition to the amount
paid to the petitioner.

20. In view of the action of the
Engineer-in-Chief in not complying with
the orders of the Court, the Court imposes
a cost of Rs.20,000/- upon the respondent
No.2, i.e., the Engineer-in-Chief, who is
present in the Court for his contumacious
action, ignoring the dignity of this Court.
The said amount shall be deposited before
the Registrar General of this Court within
three weeks from today, failing which, the
Registrar General would initiate the
recovery as arrears of land revenue. The
amount so deposited will be deposited
before the High Court Legal Services
Committee.

21. The Court finds, that the Court
had directed issuance of non-bailable
warrant by its order dated 31.1.2013,
notice of which was received by the
Judicial
Magistrate,
Lucknow
on
4.2.2013. The Court is constrained to
observe that the non-bailable warrant
could not be executed when there was
ample time for the Magistrate to get the
warrant executed. The Court is of the
opinion, that a casual approach had been
adopted by the Chief Judicial Magistrate.
In future, the Chief Judicial Magistrate
should be cautious and ensure that the
orders of the Court are complied
immediately.

22. In view of the fact that the
respondent No.2, Engineer-in-Chief, has
appeared before the Court, no further
action is now required to be taken
pursuant to the non-bailable warrant
which was issued pursuant to the order
dated 31.1.2013.

23. Registry to supply a copy of this
order to the Registrar General within two
weeks for necessary information and
action and with a request to send the
extract of the order to the Chief Judicial
Magistrate
concerned
for
necessary
information and action. A copy of the
order be also supplied by the Registry to
the
Administrative
Judge
concerned
within the same period.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 75714 of 2010

Smt. Ranjana Tandon And Others...Petitioner
Versus
Bhel Educational Society And Another

 ...Respondents

Counsel for the Petitioner:
Sri Udayan Nandan
Sri Shashi Nandan