# Sri Krishan Bhadauriya Office, AssistantIII v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-15
- **Case number:** Civil Misc. Writ Petition No. 61020 of 2012
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-krishan-bhadauriya-office-assistantiii-v-state-of-u-p-ors-42999
- **Pages:** 6

## Headnote

888 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri
Ayank
Mishra,
Sri
Baleshwar
Chaturvedi

U.P. Government Servant(Discipline and
appeal)
Rules
1999-Rule-7-Dismissalwithout holding disciplinary proceeding in
accordance with rule-without charge-sheetheld-without
following
mandatory
provisions under rule-order not sustainablequashed-reinstatement with consequential
benefit with cost of Rs. 11000/-.

Held: Para-16
Applying the law, stated herein above, on
the facts of the case at hand, it is admitted
by the respondents that the petitioner was
terminated directly without following the
procedure as provided under rule 7 of the
Rules. Enquiry against the petitioner was
never
contemplated
nor
charges
was
framed, major penalty of termination was
imposed on the investigation report that is
not permissible under the Rules.

Case Law discussed:
(2006) 9 SCC 167; [2012(1) ESC 279 (All)
(DB)]; [2012(1) ESC 229 (All) (LB)]; [2010 (1)
ESC 18 (All) (DB)]; [)2014) 2 UPLBEC 1060];
AIR 1991 SC 2010; 2013(4) SCC 161; 2013 (5)
SCC 111; 1993(3) SCC 196; 1974 A.L.J. 862;
(2007) 1 SCC (L&S) 292; [2012(1) ESC
279(All)(DB)].

## Text

2 All]. Sri Krishan Bhahauriya, Officer Assistant-III Vs. State of U.P. & Ors.
887
than ten years continuous service in Class III posts.
Preference shall however, be given to candidates
possessing a Law Degree

Rule as hereby amended:

By
selection
through
competitive
Examination to be conducted by the appointing
authority open to the Review Officer/Assistant
Review Officer having not less than ten years
continuous service. Preference shall however, be
given to candidates possessing a Law Degree

15. It is, therefore, clear that Rules,
2005 as amended in the year 2012 provide
for zone of eligibility for appearing in
competitive examination for the post of
Bench Secretary Grade-I as those working as
Review Officer/Assistant Review Officer.
The competence of the Hon'ble The Chief
Justice to frame rules under Article 229 of
the Constitution of India is not challenge.
The power to lay down service conditions
shall necessarily include the mode and
manner of recruitment to the post. The plea
of violation of Article 14 of the Constitution
of India has only been stated to be rejected.
A

16. As noticed above, under Rules,
2010, a different channel of promotion has
been provided for the petitioners and
therefore, they cannot insist that merely
because they are drawing salary, which is
equivalent to the employees working as
Review Officer/Assistant Review Officer,
which is a Class III post, they should also be
held eligible to participate in the competitive
examination for the post of Bench Secretary
Grade-I against in respect of vacancies which
occurred prior to 2012.

17. The Apex Court in the case of
Deepak Agarwal (Supra) has held that
there is no rule of universal or absolute
application that vacancies are to be filled
invariably by law existing on the date
when the vacancy arises. The law so laid
down applies with full force in the facts of
the case, inasmuch as the Rules, 2005 do
not contemplate advertisement of the
vacancy year-wise nor any other rule in
that regard has been brought to our notice
by the learned counsel for the petitioner.

18. So far as the submission of the
petitioners that they are possessed of
better
qualification
vis-a-vis
Review
Officer/Assistant
Review
Officer
is
concerned, we are of the opinion that the
submission of the petitioners has no
relevance having regard to the statutory
rules,
which
define
the
zone
of
consideration.

19.

In
the
totality
of
the
circumstances on record, we find no good
ground to interfere either with the
amended rules or with the process of
selection which has been initiated for
appointment as Bench Secretary Grade-I.

20. The present writ petition lacks
merit and is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 61020 of 2012

Sri Krishan Bhadauriya Office, AssistantIII ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brij Raj Singh, Sri S.R. Singh
Sri Devendra Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Sandeep Kumar Srivastava
888 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri
Ayank
Mishra,
Sri
Baleshwar
Chaturvedi

U.P. Government Servant(Discipline and
appeal)
Rules
1999-Rule-7-Dismissalwithout holding disciplinary proceeding in
accordance with rule-without charge-sheetheld-without
following
mandatory
provisions under rule-order not sustainablequashed-reinstatement with consequential
benefit with cost of Rs. 11000/-.

Held: Para-16
Applying the law, stated herein above, on
the facts of the case at hand, it is admitted
by the respondents that the petitioner was
terminated directly without following the
procedure as provided under rule 7 of the
Rules. Enquiry against the petitioner was
never
contemplated
nor
charges
was
framed, major penalty of termination was
imposed on the investigation report that is
not permissible under the Rules.

Case Law discussed:
(2006) 9 SCC 167; [2012(1) ESC 279 (All)
(DB)]; [2012(1) ESC 229 (All) (LB)]; [2010 (1)
ESC 18 (All) (DB)]; [)2014) 2 UPLBEC 1060];
AIR 1991 SC 2010; 2013(4) SCC 161; 2013 (5)
SCC 111; 1993(3) SCC 196; 1974 A.L.J. 862;
(2007) 1 SCC (L&S) 292; [2012(1) ESC
279(All)(DB)].

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Devendra Kumar
Singh, learned counsel for the petitioner
and Sri Ayank Mishra as well as Sri
Baleshwar Chaturvedi, learned counsel
for the respondents.

2. The petitioner was posted as
Office Assistant-III in the office of
Executive Engineer, Computer Billing
Service Centre, Agra w.e.f. April 2006 to
March 2007 and when the petitioner was
posted at Chitrakoot after six years from
the date of posting at Agra, he was issued
show cause notice dated 30.04.2012
alleging that while the petitioner was
posted in the office of Executive
Engineer,
Computer
Billing
Service
Centre,
Agra,
the
petitioner
had
committed
illegalities
inasmuch
as
irregularities pertaining to electricity bill
and money collected from the customers
was not deposited, forged receipts were
prepared which resulted in the alleged
loss of Rs. 17,05,305/-.

3. It was further alleged that
bungling was done in the output data and
in other documents. An investigation was
carried out by Sri Ram Bhajan Singh,
Inspector (Economic Offences Wings
U.P. Lucknow), and the report was
examined by the Dakshinanchal Vidyut
Vitaran Nigam Ltd., Agra and it was
decided to terminate the services of the
petitioner. The petitioner replied to the
show cause notice stating that after lapse
of six years show cause notice was issued
and the details of the allegations have not
been
furnished
and
further
the
investigation report is not enclosed with
the show cause notice. After receiving the
reply, petitioner's services was terminated
by respondent no. 4 by order dated
18.05.2012. Aggrieved by the said order,
petitioner preferred an appeal which has
also been dismissed by a five line cryptic
order.

4. Aggrieved by the orders dated
18.05.2012 passed by respondent no. 4,
Superintendent Engineer, Vidyut Vitaran
Mandal,
Banda
and
order
dated
11.10.2012 passed by respondent no. 3,
Chief Engineer, Dakshinanchal Vidyut
Vitran Nigam Ltd, Banda Region Banda,
petitioner has approached the court.

5. Sri Devendra Kumar Singh,
learned
counsel
for
the
petitioner,
2 All]. Sri Krishan Bhahauriya, Officer Assistant-III Vs. State of U.P. & Ors.
889
contends that neither any show cause
notice nor enquiry report nor any charge
sheet was ever served upon the petitioner
and no enquiry officer was appointed, the
procedure
prescribed
under
U.P.
Government Servants (Discipline and
Appeal ) Rules 1999 was not followed
and the authority has illegally exercised
his powers under Rule 3 (iv)(v) which
wholly is ex parte and illegal. The
termination order is merely eye wash in
order to protect the other officers of the
Corporation.

6. Sri Devendra Kumar Singh, in
support of his submission, has relied upon
(i) Hari Ram Maurya Versus Union of
India and others; (2006) 9 SCC 167, (ii)
Dr. Subhash Chandra Gupta Versus
Versus State of U.P. and others; [2012(1)
ESC 279 (All) (DB)], (iii) Man Mohan
Singh Jaggi Versus Food Corporation of
India and others; [2012(1) ESC 229
(All)(LB)] and (iv) G.R. Agnihotri and
another Versus Dakshinanchal Vidyut
Vitran Nigam Ltd and others; [2010(1)
ESC 18 (All)(DB)].

7. In rebuttal, Sri Baleshwar
Chaturvedi appearing for the respondents,
submits that on the employees of U.P.
State Electricity Board (now U.P. Power
Corporation Ltd.), the Uttar Pradesh
Government Servant (Discipline and
Appeal) Rules 1999 is applicable, Sri
Chaturvedi admits that the authority has
exercised its power terminating the
services of the petitioner without issuing
charge sheet and appointing enquiry
officer solely on the basis of the
investigation report submitted by the
Investigating Officer.

8. Rival submissions fall for
consideration.

9. The Division Bench of this Court
in Smt. Parmi Maurya vs. State of U.P.
and others [(2014) 2 UPLBEC 1060] held
that the provisions of Rule 7 of the U.P.
Government Servant (Discipline and
Appeal) Rules 1999 is mandatory and it is
obligatory for the employer to frame
charge/conduct disciplinary enquiry by
applying the principles of natural justice
and
prove
the
allegations,
without
adopting such procedure order passed
terminating the delinquent employee is
illegal. Paragraph 7 is as follows:-

"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 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."

10. Rule 2(d) defines departmental
enquiry and means "departmental inquiry"
under Rule 7 of the rules. Rule 7 provides
the procedure for imposing major penalty
which states that before imposing major
penalty an enquiry shall be held in the
manner provided in the rule. Sub-rule (ii)
890 INDIAN LAW REPORTS ALLAHABAD SERIES
provides
the
fact
constituting
the
misconduct on which it is proposed to
take action shall be reduced in the form of
definite charge or charges. Sub-rule (ii) is
as follows:-

"(ii) The facts constituting the
misconduct on which it is proposed to
take action shall be reduced in the form of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the disciplinary authority."

11. Sub-rule (v) provides that the
documentary
evidence
and
list
of
witnesses and the statements shall be
served upon the delinquent official
alongwith charge-sheet and sub-rule (vii)
provides that in case of denial of the
charges by the delinquent official the
enquiry officer shall proceed to call
witnesses proposed in the charge sheet
and record their oral evidence in the
presence of the charged delinquent
official who shall be given an opportunity
to cross examine such witnesses; Sub-rule
(viii) provides for submission of enquiry
report to the disciplinary authority along
with the record of the enquiry and subrule
(ix)
provides
that
disciplinary
authority having regard to the findings of
all or any of the charges is of the opinion
any penalty specified in rule 3 should be
imposed on the charged government
servant which shall give a copy of the
enquiry report and his findings recorded
to the charged Government servant and
require him to submit representation, if he
so desires and thereafter pass reasoned
order imposing one or more penalty
mentioned in rule 3.

12. The Supreme Court in Union of
India vs. K.V. Jankiraman (AIR 1991 SC
2010), Union of India V. Anil Kumar
Sarkar, 2013 (4) SCC 161 and State of
Andhra Pradesh v. C.H. Gandhi, 2013 (5)
SCC
111,
held
that
the
enquiry
commences from the date of issue of
charge-sheet. Framing of the charge-sheet
is the first step taken for holding enquiry
into the allegations on the decision taken
to
initiate
disciplinary
proceedings.
Service
of
charge-sheet
on
the
Government servant follows decision to
initiate disciplinary proceedings and it
does not precede and coincide with that
decision.
(Vide
Delhi
Development
Authority v. H.C. Khurana 1993 (3) SCC
196).

13. The Full Bench judgment in case
of State of U.P. v. Jai Singh Dixit and
others, 1974 A.L.J. 862, the words
'inquiry'
and
'contemplated'
was
considered.

"34. A formal departmental inquiry
is invariably preceded by an informal
preliminary inquiry which itself can be in
two phases. There can be a summary
investigation to find out if the allegations
made against the Government servant
have any substance. Such investigation or
inquiry
is
followed
by
a
detailed
preliminary
or
fact
finding
inquiry
whereafter final decision is taken whether
to initiate disciplinary proceeding. The
first preliminary inquiry may be in the
shape of secret inquiry and the other, of
an open inquiry. In the alternative, when
complaints containing serious allegations
against
a
Government
servant
are
received, the authority may peruse the
records to satisfy itself if a more detailed
preliminary inquiry be made.

37.
Departmental
inquiry
is
contemplated
when
on
objective
consideration
of
the
material
the
2 All]. Sri Krishan Bhahauriya, Officer Assistant-III Vs. State of U.P. & Ors.
891
appointing authority considers the case as
one which would lead to a departmental,
inquiry, irrespective of whether any
preliminary inquiry, summary or detailed,
has or has not been made or if made, is
not complete. There can, therefore, be
suspension pending inquiry even before a
final decision is taken to initiate the
disciplinary proceeding i.e., even before
the framing of the charge and the
communication
thereof
to
the
Government servant."

14. The Supreme Court in Mathura
Prasad v. Union of India and others,
(2007) 1 SCC (L&S) 292), held that when
an employee is sought to be deprived of
his livelihood for alleged misconduct, the
procedure laid down under the rules are
required to be strictly complied with:

"When an employee, by reason of an
alleged act of misconduct, is sought to be
deprived of his livelihood, the procedure
laid down under the sub-rules are required
to be strictly followed: It is now well
settled that a judicial review would lie
even if there is an error of law apparent
on the face of the record. If statutory
authority uses its power in the manner not
provided for in the statute or passes an
order without application of mind, judicial
review would be maintainable. Even an
error of fact, for sufficient reasons may
attract the principles of judicial review."

15. The Division Bench of this
Court in Dr. Subhash Chandra Gupta v.
State of U.P. and others, [2012(1) ESC
279 (All)(DB)] while dealing with the
provision of rule 7 and 9 of the Rules,
held that the procedure for imposition of
major penalty is mandatory and where the
statute provides to do a thing in a
particular manner that thing has to be
done in that manner. Paras 15 and 16 is as
follows:-

"15. It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be
done in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted in accordance with the enquiry
rules meant for that very purposes is
unsustainable in the eye of law. We are
further of the view that the procedure
prescribed under the inquiry rules for
imposing major penalty is mandatory in
nature and unless those procedures are
followed, any out come inferred thereon
will be of no avail unless the charges are
so glaring and unrefutable which does not
require any proof. The view taken by us
find support from the judgment of the
Apex Court in State of U.P. and another
v. T.P. Lal Srivastava, 1997 (1) LLJ 831,
as well as by a Division bench of this
Court in Subash Chandra Sharma v.
Managing Director and another, 2000(1)
UPLBEC 541.

16. A Division Bench decision of this
Court in the case of Salahuddin Ansari v.
State of U.P. and others, 2008(3) ESC 1667
(All)(DB), held that non holding of oral
inquiry is a serious flaw which can vitiate
the order of disciplinary proceedings
including the order of punishment has
observed as under:

"10..........Non holding of oral inquiry
in such a case, is a serious matter and
goes to the root of the case.

11. A Division Bench of this Court
in Subash Chandra Sharma v. Managing
Director and another, 2000(1) UPLBEC
541, considering the question as to
892 INDIAN LAW REPORTS ALLAHABAD SERIES
whether holding of an oral inquiry is
necessary or not, held that if no oral
inquiry is held, it amounts to denial of
principles of natural justice to the
delinquent employee. The aforesaid view
was reiterated in Subash Chandra Sharma
v. U.P. Cooperative Spinning Mills and
others, 2001(2) UPLBEC 1475 and Laturi
Singh v. U.P. Public Service Trinunal and
others, Writ Petition No. 12939 of 2001,
decided on 6.5.2005."

16. Applying the law, stated herein
above, on the facts of the case at hand, it
is admitted by the respondents that the
petitioner was terminated directly without
following the procedure as provided
under rule 7 of the Rules. Enquiry against
the petitioner was never contemplated nor
charges was framed, major penalty of
termination
was
imposed
on
the
investigation report that is not permissible
under the Rules.

17. The impugned order dated
18.05.2012 passed by respondent no. 4,
Superintendent Engineer, Vidyut Vitaran
Mandal, Banda and order dated 11.10.2012
passed by respondent no. 3, Chief Engineer,
Dakshinanchal Vidyut Vitran Nigam Ltd,
Banda Region Banda, are quashed. The
petitioner shall be reinstated in service with
all consequential benefits.

18. In the facts and circumstances of
the case and for the reasons stated herein
above, the writ petition is allowed.
Counsel fee assessed at Rs. 11,000/-.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2014

BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 64875 of 2011

Man Mohan Rai ...Petitioner
Versus
U.P. Financial Corporation Kanpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri A.K. Malviya, Sri N.L. Pandey

Counsel for the Respondents:
C.S.C., Sri A.A. Khan

Constitution of India, Art.-226-Recovery of
loan-advanced by financial corporation
amount exceeding Rs. 10 lacs-can be
recovered under state financial corporation
act-recovery proceeding under Act no.
1972-held-without jurisdicition.

Held: Para-16
From the discussions aforesaid, it is clear
that the recovery in the present case since
is for an amount exceeding Rs.10 lacs,
therefore, it could be resorted to only under
the provisions of the Act 1993 or the
enactment protected by virtue of section
34(2) therein, which includes the 1951 Act,
but omits the 1972 Act. The impugned
recovery certificate issued under the 1972
Act, therefore, is contrary to law and cannot
be
sustained.
Consequently,
the
writ
petition succeeds and is allowed. The
impugned recovery proceedings pursuant
to recovery citation dated 14.10.2010
initiated under the 1972 Act are set aside.
However,
it
will
be
open
for
the
respondent- corporation to proceed in
accordance with law under the Act 1993 or
State Financial Corporation Act, 1951,
which may be available to it.

Case Law discussed:
(2003) 2 SCC 455; 2005 AIR (All) 320; W.P.
No. 33035 of 2004; (2010) 5 SCC 761.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. The present writ petition has been
filed challenging the recovery certificate