# Sri Mainuddin v. M.D., U.P.S.R.T.C. and others

- **Citation:** (2008) 2 ILRA 372
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-20
- **Case number:** Civil Misc. Writ Petition No. 35276 of 2002
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-mainuddin-v-m-d-u-p-s-r-t-c-and-others-41172
- **Pages:** 6

## Headnote

Constitution
of
India-Practice
&
Procedure-Dismissal from Service-earlier
High Court remanded the matter for
consideration of question of punishmentas
with
similar
charges
alongwith
petitioner
28
employees
in
same
incident-punished with stoppage of 4 or
5 increments-even on second inninginflicted same punishment of dismissalheld-approach of authority-contrary to
law-when the matter remitted back with
limited point of consideration-not open
for the authority to sit over the Court.

Held: Para 16

However,
such
argument
could
be
advanced by the learned counsel for the
respondents in the first innings of
litigation in earlier writ petition filed by
the petitioner. In case such argument
could not find favour, it was open to the
UPSRTC
to
challenge
the
decision
rendered by this court dated 15.3.2002
before available higher forum but it is
not open to the authorities to sit over the
judgement
of
this
court
and
take
different view in the matter of its own
contrary to the tenor of the decision and
direction of this Court when the issue
was concluded against the respondents
and case was remanded to the Managing
Director, UPSRTC for limited purpose of
passing fresh order on the quantum of
punishment similar to the punishment
awarded
against
those
27
other
employees. While doing so, it was not
open to him to deal with the quantum of
punishment independently from other
employees on merit. In my opinion, such
approach of authority is contrary law
being in the teeth of the decision of this
court.
Case law discussed:
(2006) 2 UPLBEC 1862, (2007) 2 UPLBEC
1788, 2005(6) S.C.C. 796, (2004) 1 S.C.C. 605
(Pr.12), (2004 ) 1 SCC 605, (2005) 6 SCC 796

## Text

372 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 35276 of 2002

Sri Mainuddin

...Petitioner
Versus
Managing Director, U.P. State Road
Transport
Corporation, Lucknow and
others

...Respondents

Counsel for the Petitioner:
Sri A.R. Dube
Sri Satyendra Singh
Sri Sanjay Dwivedi
Sri Anubhav Chandra

Counsel for the Respondents:
Sri Ganga Prasad Gupta
Sri Neeraj Tripathi

Constitution
of
India-Practice
&
Procedure-Dismissal from Service-earlier
High Court remanded the matter for
consideration of question of punishmentas
with
similar
charges
alongwith
petitioner
28
employees
in
same
incident-punished with stoppage of 4 or
5 increments-even on second inninginflicted same punishment of dismissalheld-approach of authority-contrary to
law-when the matter remitted back with
limited point of consideration-not open
for the authority to sit over the Court.

Held: Para 16

However,
such
argument
could
be
advanced by the learned counsel for the
respondents in the first innings of
litigation in earlier writ petition filed by
the petitioner. In case such argument
could not find favour, it was open to the
UPSRTC
to
challenge
the
decision
rendered by this court dated 15.3.2002
before available higher forum but it is
not open to the authorities to sit over the
judgement
of
this
court
and
take
different view in the matter of its own
contrary to the tenor of the decision and
direction of this Court when the issue
was concluded against the respondents
and case was remanded to the Managing
Director, UPSRTC for limited purpose of
passing fresh order on the quantum of
punishment similar to the punishment
awarded
against
those
27
other
employees. While doing so, it was not
open to him to deal with the quantum of
punishment independently from other
employees on merit. In my opinion, such
approach of authority is contrary law
being in the teeth of the decision of this
court.
Case law discussed:
(2006) 2 UPLBEC 1862, (2007) 2 UPLBEC
1788, 2005(6) S.C.C. 796, (2004) 1 S.C.C. 605
(Pr.12), (2004 ) 1 SCC 605, (2005) 6 SCC 796

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. The main question in controversy
involved in this case is that whether the
issue concluded at higher forum can be
re-agitated in remand proceeding or only
that issue can be considered which has
been remanded by higher forum?

2. The relevant facts having material
bearing with the question in controversy
involved in the case are that after holding
disciplinary inquiry on the charges of
misconduct levelled against 28 employees
including the petitioner in respect of same
incident on similar misconducts various
penalties have been inflicted upon them,
some
persons
were
inflicted
minor
penalties and some were inflicted major
penalties including the stoppage of 3,4 or
5 increments but a very harsh penalty of
dismissal from service has been imposed
upon the petitioner. Feeling aggrieved
against the order of dismissal passed by
disciplinary authority on 22.5.1996 the
petitioner has unsuccessfully preferred
2 All] Sri Mainuddin V. M.D., U.P.S.R.T.C. and others
373
departmental appeal before the Appellate
Authority and thereafter has filed earlier
writ petition no. 31704 of 1996 before this
court.

3. While deciding the aforesaid case
on 15.3.2002 this court has been pleased
to observed as under:-

"According to the petitioner certain
allegations
was
made
against
28
employees of UPSRTC Regional Office,
Varanasi in the Body and re conditioning
Section in the Regional Office of
UPSRTC, Varanasi. The disciplinary
action against all the 28 employees
including the petitioner was taken. The
petitioner has been dismissed from
service. The appeal filed by the petitioner
has also been dismissed by the Regional
Manager. A supplementary affidavit was
filed by the petitioner, in which it has
been stated that in respect of the
remaining employees a lenient view has
been taken by giving some minor
punishment and the petitioner has been
arbitrarily discriminated. Copies of some
of the orders has been collectively filed as
Annexure SA-1 to the supplementary
affidavit. From perusal of the aforesaid
annexures
it
appears
that
all
the
employees were involved in similar type
of misconduct. Some of them have been
given minor punishment whereas the
petitioner has been dismissed from
service. It goes without saying that if all
the employees were involved in similar
type of misconduct then the punishment
ought to be same. The petitioner appears
to have been discriminated without any
rhyme or reason as he has been imposed
major punishment of dismissal from
service, which in the circumstances
cannot be sustained. Since the misconduct
has been found to have been proved by
the authorities, the interest of justice
would be best served, if the petitioner is
directed to approache the Managing
Director, UPSRTC, Lucknow within one
month from today, he shall consider the
case of the petitioner alongwith the order
passed in respect of other employees of
the same incident and may pass similar
order of punishment. The Managing
Director shall decide the matter within six
weeks thereafter.
With the aforesaid observations, the
writ petition is finally disposed of."

4. Learned counsel for the petitioner
has informed the court and pointed out
that the petitioner has made representation
before the Managing Director, UPSRTC
alongwith the copy of order dated
15.3.2002 passed by this court in
aforesaid writ petition but while misinterpreting the contents and tenor of the
decision rendered by this court on
15.3.2002 in earlier writ petition filed by
the petitioner the Managing Director,
UPSRTC has passed the impugned order
dated 18th May 2002 whereby the stand
taken earlier by UPSRTC dismissing the
petitioner from service has again been
reiterated hence this petition.

5. Learned counsel for the petitioner
has submitted that the impugned order
dated 18.5.2002 passed by Managing
Director, UPSRTC runs contrary to the
contents and tenor of the decision of this
court dated 15.3.2002 passed in writ
petition earlier filed by the petitioner,
therefore, cannot be sustained at all.

6. Contrary to it, Sri Ganga Prasad
Gupta, Advocate appearing for UPSRTC
has vehemently contended that the case of
petitioner was quite distinguishable from
the case of other 27 employees who were
374 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
subjected to disciplinary action alongwith
the petitioner in respect of the same
incident and some of them were subjected
with the minor penalty whereas some of
them given major penalty including
stoppage of 3 to 5 Annual increments
proportionately to the gravity of the
charges found proved against them. Since
the gravity of the charges levelled and
found proved against other employees
were quite distinguishable from the
charges which were found proved against
the petitioner and the charges were much
more grave than them, therefore, the case
of petitioner was quite distinguishable and
accordingly
he
has
been
punished
appropriately by punishment of dismissal
from service thus, no fault can be found in
the order of dismissal having regard to the
gravity of charges found proved against
him.

7. Learned counsel appearing for
UPSRTC has further submitted that since
a fresh decision was to be taken on the
quantum of punishment by the Managing
Director
of
UPSRTC
and
while
remanding the case matter has been left
over by this Court upon the Managing
Director of U.P.S.R.T.C., therefore, while
taking the impugned decision dated 18th
May 2002 the Managing Director himself
has examined the matter and cases of all
those employees who have been awarded
lesser punishment than the petitioner and
found that the charges which were proved
against the petitioner were much serious
and grave than that of those employees,
therefore, the penalty of dismissal of
petitioner was found justified. In support
of his aforesaid submissions he has also
placed
reliance
upon
the
decisions
rendered in Ramjit Gupta Vs. The
Labour
Court,
U.P.,
Betia
Hata,
Gorakhpur
and
others,
(2006)
2
UPLBEC 1862 and B. Swamy Vs. The
Depot Manager, APSRTC, (2007) 2
UPLBEC 1788.

8. While refuting the contention of
Sri Ganga Prasad Gupta, learned counsel
for respondents, Sri A.R. Dubey, learned
counsel for the petitioner has further
submitted that in the light of findings
recorded by this court in judgement and
order dated 15.3.2002 in writ petition
earlier filed by the petitioner, there
appears hardly any scope for such
arguments by the counsel appearing for
respondents. He has submitted that the
Hon'ble Apex Court in Bharat Coke
Company Vs. Trade Tax Officer,
2005(6) S.C.C. 796 and in Radha
Raman Samant Vs. Bank of India and
others (2004) 1 S.C.C. 605 (Pr.12) has
held that the issue concluded at higher
forum can not be re-agitated in remand
proceeding and only that issue can be
considered, which has been remanded by
the higher forum.

9. Heard Sri A.R. Dube, learned
counsel for the petitioner and Sri Ganga
Prasad Gupta for the U.P.S.R.T.C.

10. In view of rival submissions of
learned counsel appearing for the parties
the
question
which
arises
for
consideration of this court is that as to
whether Managing Director of UPSRTC
could
pass
impugned
order
dated
18.5.2002 afresh on merit of the charges
found proved against the petitioner by reagitating the matter concluded by this
Court in the judgement and order dated
15.3.2002
independently
of
other
employees who have been subjected to
disciplinary proceeding alongwith the
petitioner in respect of same incident for
similar charges or his quantum of
2 All] Sri Mainuddin V. M.D., U.P.S.R.T.C. and others
375
punishment could be restricted to be at
par with them or on such remand the
Managing Director was required to
examine only that issue which was left
over for his disposal according to the
direction contained in the order of
remand?

11. In this connection, it is to be
noted that a mere reading of the decision
of this court rendered in Writ Petition No.
31704 of 1996 earlier filed by the
petitioner, indicates that while deciding
the case this court has clearly held that
from a perusal of enclosures filed with the
supplementary affidavit it appears that all
the employees were involved in similar
type of misconduct, some of them have
been given minor punishment whereas the
petitioner has been dismissed from
service. It goes without saying that if all
the employees were involved in similar
type of misconduct then punishment
ought to be same. The petitioner appears
to have been discriminated without any
rhyme or reason as he has been imposed
major punishment of dismissal from
service, which in the circumstances
cannot be sustained. Since the misconduct
has been found proved by the authorities,
the interest of justice would be best
served if the petitioner is directed to
approach Managing Director, UPSRTC
who shall consider the case of petitioner
alongwith other employees of same
incident and may pass similar order of
punishment.

12. Now coming to the decisions of
Hon'ble Apex Court upon which learned
counsel for the petitioner has placed
reliance in support of the case of the
petitioner. In Radha Raman Samant Vs.
Bank of India and others (2004) 1 SCC
605 the Hon'ble Apex Court has held that
only that issue can be considered which
have been remanded by Higher court or
authority. The pertinent observation made
in para 12 of the decision is extracted as
under:-
"12. ............ Therefore, the learned
Single Judge was bound to address only
on one issue upon which the matter had
been remanded. Thus, the Division Bench
could not have overlooked these facts in
the appeal arising from the order of the
learned Single Judge on the second
occasion after remand and need not have
gone into the question as to whether the
writ petition could have been entertained
at all or not. Therefore, we are of view
that the High Court could not have
overlooked these facts and interfered with
the order of the learned Single Judge."

13. The same view has been
reiterated by Hon'ble Apex Court in
Bharat &Co. Vs. Trade Tax Officer and
another (2005) 6 SCC 796. The pertinent
observation made by Hon'ble Apex Court
in para 19 of the decision is extracted as
under:-

"19. ........The Trade Tax Tribunal as
early as on 31.3.2000 had held that the
appellant had the locus standi to ask for
the release of goods because the appellant
was the owner of the goods. The decision
of the Tribunal was not challenged by the
respondents. The decision of the Tribunal
not being challenged, the issue of title was
concluded in the appellant's favour. In the
face of this order, it was not open to the
Assistant Commissioner, Trade Tax on
remand to reject the application of the
appellant on the ground that it was not the
owner of the goods. The High Court
should have considered this aspect of the
matter particularly when it had been
expressly drawn to the High Court's
376 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
attention. The High Court was also
precluded from re-deciding the same issue
between the same parties."

14. In view of aforestated legal
position, I am of the considered opinion
that there can be hardly any scope for
argument on behalf of respondents that
the misconduct of the petitioner is
distinguishable from other employees and
he has not been discriminated from other
employees in respect of punishment
imposed upon him in wake of clear and
unambiguous finding of this court on the
question of similarity of charges of
misconduct and discrimination made
against him while awarding penalty and
further finding that the petitioner appears
to have been discriminated without any
rhyme or reason as he has been imposed
major punishment of dismissal from
service, which in the circumstances can
not be sustained. After recording the
aforesaid fining this Court has given
liberty to approach the Managing Director
who was required to pass similar order of
punishment, therefore, in my opinion, the
aforesaid
issue
has
already
been
concluded by this Court. In remand
proceeding the same could not be reagitated on merits; in view of law laid
down by Hon'ble Apex Court in Bharat
Coke Company's case (supra) and
Radha Raman Samant case (supra) and
the only course was open to the Managing
Director
to
pass
similar
order
of
punishment in case of petitioner like other
employees.

15. In given facts and circumstances
of the case, the Managing Director of
UPSRTC could pass appropriate order on
the question of quantum of punishment of
petitioner without insisting upon the
earlier punishment imposed against him
by taking the view in mind as taken in
other aforesaid 27 employees. In such
situation, it is needless to say that at the
most, the Managing Director could
impose any maximum punishment upon
the petitioner to the extent of which the
punishment has been imposed against any
one of 27 employees subjected to the
disciplinary action in respect of same
incident on similar charges. But it was not
at all open to the Managing Director of
UPSRTC to insist and go on justifying
earlier
decision
taken
against
the
petitioner, which has been quashed by this
court
on
finding
it
harsh
and
discriminatory. The decisions cited by
learned counsel for UPSRTC in my
considered
opinion
can
be
of
no
assistance to the case of respondents, as
this court is neither called upon to review
the judgment and order dated 15.3.2002
passed by this court nor can take different
view in matter on merit as if sitting in
appeal over the aforesaid decision.

16. However, such argument could
be advanced by the learned counsel for
the respondents in the first innings of
litigation in earlier writ petition filed by
the petitioner. In case such argument
could not find favour, it was open to the
UPSRTC to challenge the decision
rendered by this court dated 15.3.2002
before available higher forum but it is not
open to the authorities to sit over the
judgement of this court and take different
view in the matter of its own contrary to
the tenor of the decision and direction of
this Court when the issue was concluded
against the respondents and case was
remanded to the Managing Director,
UPSRTC for limited purpose of passing
fresh order on the quantum of punishment
similar to the punishment awarded against
those 27 other employees. While doing
2 All] Soney Lal V. U.P. Electricity Board, Lucknow and another
377
so, it was not open to him to deal with the
quantum of punishment independently
from other employees on merit. In my
opinion, such approach of authority is
contrary law being in the teeth of the
decision of this court.

17. In view of aforesaid discussions,
the impugned order passed by Managing
Director, UPSRTC dated 18th May 2002,
contained in Annexure-1 of the writ
petition cannot be sustained and is hereby
quashed. However the matter is again
remitted back to the Managing Director of
UPSRTC to take fresh decision on the
question of quantum of punishment to be
imposed upon the petitioner in the light of
observations made herein before.

18. Since no person out of 27
persons involved in the aforesaid incident
has been dismissed or removed from
service, therefore, the petitioner can also
not be removed from service, Accordingly
the respondents are directed to reinstate
the petitioner in service from the date of
dismissal alongwith the continuity of
service and consequential benefits of
seniority and the respondents are further
directed to pay the petitioner 40%
monthly salary as arrears of salary
alongwith other emoluments attached to
the post for the period during which the
petitioner was out of employment within a
period of three months, provided he
furnishes proof of his non-employment
during the aforesaid period before the
authorities concerned and authorities
concerned is satisfied about his nonemployment during the said period.

19. With the aforesaid observations
and directions, the writ petition succeeds
and allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2008

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 233 of 2008

Soney Lal

...Plaintiff/Appellant
Versus
U.P. Electricity Board, Lucknow and
another
...Defendant/Respondents

Counsel for the Appellant:
Sri Anjani Kumar Dubey
Sri Dr. S.B. Singh

Counsel for the Respondents:
Sri H.P. Dubey
Sri S.C. Pandey

Code of Civil Procedure-Section 100Second Appeal-Substantial question of
law-must be debatable-not previously
settled-material bearing of case.

Held: Para 13

The Apex Court in the recent case of
Santosh Hazari Vs. Purshottam Tiwari,
(2001) 3 SCC, 179, ruled that a point of
law which admits of no two opinions
may be preposition of law but cannot be
a substantial question of law. To be
'substantial' a question of law must be
debatable, not previously settled by law
of the land or a binding precedent, and
must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before
it
are
concerned.
It
will,
therefore, depend on the facts and
circumstances of the each case whether
a question of law is substantial one and
involved in the case or not? The same
view has been expressed by the Apex
Court in the case of Govinda Raju Vs.
Mariamman (2005) 2 Supreme Court
Cases, 500.