# Sripal Giri v. State of U.P. & Ors

- **Citation:** (2025) 2 ILRA 687
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-05
- **Case number:** Writ - A No. 56331 of 2012
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sripal-giri-v-state-of-u-p-ors-53024
- **Pages:** 18

## Headnote

A. Service Law - Disciplinary proceedings
-
Punishment
-
Civil
Service
(Classification, Control and Appeal) Rules,
1930 - Fundamental Rule 54-B - The most
important feature about the decision of
the Government to pay allowances for the
period of suspension is that a decision in
this regard has to be taken by the
Disciplinary
Authority,
after
giving
a
notice to the government servant and
calling for his explanation within the
period specified under Fundamental Rule
54 of the Financial Hand Book. Here,
688 INDIAN LAW REPORTS ALLAHABAD SERIES
admittedly, no notice was served upon the
petitioner, calling for his explanation by the
Disciplinary Authority as to why for the period of
his suspension from service, nothing towards his
emoluments be paid, except the subsistence
allowance that he had received. (Para 26)

B. Rule 5 of the Rules of 1999 - It says
that for the period of suspension after
notice to the employee, a decision shall be
taken
by
the
Disciplinary
Authority,
whether the period of suspension shall be
treated as one spent on duty or not. But,
that power may not entirely apply in this
case. In any case, even if there were such
a power in the Disciplinary Authority, it
has to be exercised reasonably; not
capriciously. (Para 31)

C. The decision to discount the entire
period
of
time
that
the
petitioner
remained out of service on account of the
order
of
dismissal
passed
by
the
respondents and since quashed by this
Court in the earlier writ petition, is not
one of the penalties envisaged under the
Service Rules; to be specific the eight
penalties enumerated in Rule 3 of the
Rules of 1999. Therefore, this deprivation,
inflicted upon the petitioner, not being one of
the enumerated penalties, going by the salutary
principle that no order, visiting a person with
adverse civil consequence, ought be made
without a reasonable opportunity of hearing to
him, the order would be bad for want of notice
and opportunity.

D. If Rule 5 of the Rules of 1999 has any
bearing on the issue proprio vigor or by
analogy, before a deprivation of this
kind for the period of dismissal was
brought upon the petitioner, it was
incumbent to issue notice to him in this
regard and hear him on the point. This
has admittedly not been done. This
devastating prejudicial measure, a part of the
impugned order, has come together with the
order of punishment of reduction to the
lowest stage in the time scale awarded to the
petitioner with this Court granting liberty to
the respondents to award a lesser penalty,
instead of dismissal earlier ordered. If at all
any kind of a measure prejudicial to the
petitioner's interest, apart form the
penalty imposed under the Rules, were
to be taken by the respondents, it had to
be with due notice and opportunity to
the petitioner, afforded separately. (Para
32)

E. Violative of Articles 14 and 16 of the
Constitution - Apart from this part of the
order being bad on account of want of
notice and opportunity to the petitioner,
the order is utterly arbitrary, capricious
and whimsical. It is found that the penalty
of dismissal from service earlier awarded to
be shockingly disproportionate. The penalty of
dismissal was regarded too severe by this
Court and that judgment of the Court was
accepted by the respondents without invoking
any appellate procedures.

If the respondents had not erred in
passing an order of dismissal from
service
for
a
relatively
trivial
misconduct, the petitioner would have
continued in service, suffering some
minor
penalty.
There
would
be
continuity in service for him, which
would at least preserve his seniority and
contribute to his post retiral benefits. In
one stroke of pen, the petitioner has been
deprived of all these benefits by this part of
the order impugned. It is beyond any
standard of reasonableness or fairness why
an employee, who is held by this Court to
have
been
awarded
a
shockingly
disproportionate terminal punishment for a
relatively trivial misconduct with a dir

## Text

_Characters 0–39,908 of 62,268. This is a partial read: ask again with offset=39908 for what follows._

2 All. Sripal Giri Vs. State of U.P. & Ors.
687

39. By issuing the restrictive directive
of "minimal appointment of teachers" on
election duties the Election Commission
has ensured that the electoral process does
not impose onerous demands on the educational
system. In the wake of the preceding discussion
Guideline No. 1.5d clearly mandates that
teachers will be employed on election duties only
after all other categories of employees mentioned
in the Election Guideline No. 1.5d have been
exhausted. In other words the appointment of
Booth Level Officers or assignment of election
duties shall be first made from the pool of all
categories of employees depicted in the Election
Guidelines No. 1.2 except for teachers. There
may be occasions when even after appointment
of all other categories of employees (apart from
teachers) vacancies of Booth Level Officers are
not filled and there is need for additional hands.
In that situation alone teachers can be appointed
as Booth Level Officers and assigned election
duties. Engagement of teachers on election duties
shall always be a measure of last resort, and only
after all other options in Election Guidelines No.
1.2 and 1.5d have been exercised.

H. Final Directions:

40.
Accordingly,
the
respondent
authorities are directed to refix the
deployment of teachers as Booth Level
Officers or on other election duties in light
of the above interpretation of Election
Commission Guideline No. 1.5d read with
Election Commission Guideline No. 1.2. In
case other categories of staff mentioned in
Election Guideline No. 1.2 are available,
teachers shall not be deployed on election
duties or appointed as Booth Level
Officers. The exercise shall be completed
within a period of three months.

41. However, till such exercise is
carried out the concerned teachers will
have to discharge their electoral duties as
contemplated in the impugned list of BLO
dated 16.08.2024 passed by the respondent
No. 7 i.e. District Magistrate/District
Electoral Registration Officer, Jhansi. The
petitioner shall perform the electoral duties
on holidays and after teaching hours till
fresh orders in compliance of directions in
this writ petition. The impugned order/list
shall however abide by the fresh orders to
be passed by the respondent No. 7 pursuant
to the above directions.

42. With the aforesaid directions, the
writ petition is finally disposed of.
----------
(2025) 2 ILRA 687
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2025

BEFORE

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

Writ - A No. 56331 of 2012

Sripal Giri ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. H.M.B. Sinha, Advocate

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary proceedings
-
Punishment
-
Civil
Service
(Classification, Control and Appeal) Rules,
1930 - Fundamental Rule 54-B - The most
important feature about the decision of
the Government to pay allowances for the
period of suspension is that a decision in
this regard has to be taken by the
Disciplinary
Authority,
after
giving
a
notice to the government servant and
calling for his explanation within the
period specified under Fundamental Rule
54 of the Financial Hand Book. Here,
688 INDIAN LAW REPORTS ALLAHABAD SERIES
admittedly, no notice was served upon the
petitioner, calling for his explanation by the
Disciplinary Authority as to why for the period of
his suspension from service, nothing towards his
emoluments be paid, except the subsistence
allowance that he had received. (Para 26)

B. Rule 5 of the Rules of 1999 - It says
that for the period of suspension after
notice to the employee, a decision shall be
taken
by
the
Disciplinary
Authority,
whether the period of suspension shall be
treated as one spent on duty or not. But,
that power may not entirely apply in this
case. In any case, even if there were such
a power in the Disciplinary Authority, it
has to be exercised reasonably; not
capriciously. (Para 31)

C. The decision to discount the entire
period
of
time
that
the
petitioner
remained out of service on account of the
order
of
dismissal
passed
by
the
respondents and since quashed by this
Court in the earlier writ petition, is not
one of the penalties envisaged under the
Service Rules; to be specific the eight
penalties enumerated in Rule 3 of the
Rules of 1999. Therefore, this deprivation,
inflicted upon the petitioner, not being one of
the enumerated penalties, going by the salutary
principle that no order, visiting a person with
adverse civil consequence, ought be made
without a reasonable opportunity of hearing to
him, the order would be bad for want of notice
and opportunity.

D. If Rule 5 of the Rules of 1999 has any
bearing on the issue proprio vigor or by
analogy, before a deprivation of this
kind for the period of dismissal was
brought upon the petitioner, it was
incumbent to issue notice to him in this
regard and hear him on the point. This
has admittedly not been done. This
devastating prejudicial measure, a part of the
impugned order, has come together with the
order of punishment of reduction to the
lowest stage in the time scale awarded to the
petitioner with this Court granting liberty to
the respondents to award a lesser penalty,
instead of dismissal earlier ordered. If at all
any kind of a measure prejudicial to the
petitioner's interest, apart form the
penalty imposed under the Rules, were
to be taken by the respondents, it had to
be with due notice and opportunity to
the petitioner, afforded separately. (Para
32)

E. Violative of Articles 14 and 16 of the
Constitution - Apart from this part of the
order being bad on account of want of
notice and opportunity to the petitioner,
the order is utterly arbitrary, capricious
and whimsical. It is found that the penalty
of dismissal from service earlier awarded to
be shockingly disproportionate. The penalty of
dismissal was regarded too severe by this
Court and that judgment of the Court was
accepted by the respondents without invoking
any appellate procedures.

If the respondents had not erred in
passing an order of dismissal from
service
for
a
relatively
trivial
misconduct, the petitioner would have
continued in service, suffering some
minor
penalty.
There
would
be
continuity in service for him, which
would at least preserve his seniority and
contribute to his post retiral benefits. In
one stroke of pen, the petitioner has been
deprived of all these benefits by this part of
the order impugned. It is beyond any
standard of reasonableness or fairness why
an employee, who is held by this Court to
have
been
awarded
a
shockingly
disproportionate terminal punishment for a
relatively trivial misconduct with a direction to
award a lesser punishment, upon reinSt.ment
would loose the benefit of continuity in
service, including seniority and reckoning of
the period of service for the purpose of post
retiral benefits. This part of the order, to the
clear understanding of the Court, given the
circumstances that the petitioner's dismissal
from service was regarded as shockingly
disproportionate, is both arbitrary and unfair.
(Para 33)

The impugned order dated 19.07.2012, to the
extent it punishes the petitioner, is hereby
quashed. (Para 35)

Writ petition allowed. (E-4)
2 All. Sripal Giri Vs. State of U.P. & Ors.
689
Precedent followed:

1. Gaya Prasad Yadav Vs St. of U.P. through
Principal Secretary & anr., 2022 SCC OnLine All
685 (Para 20)

2. Akhilesh Kumar Awasthi Vs St. of U.P. & ors.,
2008 (4) AWC 4061 (Para 26)

3. Ram Kripal Srivastava Vs U.P.P.S.T., 2011
SCC OnLine All 3339 (Para 28)

4. Deepali Gundu Surwase Vs Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) & ors., (2013)
10 SCC 324 (Para 33)

Precedent distinguished:

Chairman-cum-Managing
Director,
Mahanadi
Coalfields Limited Vs Rabindranath Chaubey,
(2020) 18 SCC 71 (Para 21)

This writ petition assails an order passed
by the Joint Commissioner (Commercial
Tax), holding charge of the Deputy
Commissioner
(Administration),
Commercial Tax, Noida dated 19.07.2012
to the extent it punishes the petitioner
after disciplinary proceedings.

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

1. This writ petition is directed against
an order passed by the Joint Commissioner
(Commercial Tax), holding charge of the
Deputy Commissioner (Administration),
Commercial
Tax,
NOIDA
dated
19.07.2012 to the extent it punishes the
petitioner after disciplinary proceedings.

2. The facts, giving rise to this writ
petition,
are
necessary
to
recount,
notwithstanding the fact that the issue
involved here is limited. The petitioner is a
Sewak (Class-IV employee) in the service
of the Trade Tax Department and posted in
the NOIDA Region, District Gautam Budh
Nagar.
In
the
night
intervening
06/07.07.1995, the petitioner was posted at
the Mohan Nagar, Ghaziabad Check-post
along with two other Sewak, Ram Swarup
and Kushalpal. The allegation against the
petitioner was that along with the two other
Sewak, he permitted a vehicle, bearing
Registration No. DL-G/9490, to pass
through the Check-post without checking
its papers. The petitioner was placed under
suspension pending inquiry along with
Ram Swarup, one of the two other Sewak,
vide order dated 27.12.1995. He was served
with a charge-sheet on 25.10.1999. The
petitioner filed his reply on 01.02.2000,
denying the charges. The Inquiry Officer
held an inquiry, returning a finding of guilt
against the petitioner on both charges. The
petitioner says that the Inquiry Officer had
remarked that the petitioner and the other
two Sewak, Ram Swarup and Kushalpal,
were equally guilty. About Kushalpal, it is
said that though equally answerable, he was
not suspended or charge-sheeted.

3. The petitioner was served with a
show cause notice dated 09.03.2000, to
which
he
submitted
a
reply
dated
13.03.2000. The Assistant Commissioner
(Administration), Trade Tax, NOIDA,
Gautam Budh Nagar vide order dated
14.03.2000 proceeded to dismiss the
petitioner from service. The petitioner
preferred a departmental appeal, which was
rejected by the Deputy Commissioner
(Office Trade Tax), NOIDA vide order
dated
09.11.2001.
The
petitioner
challenged these orders before this Court
by means of Writ-A No.20574 of 2008.
The said writ petition came to be allowed
by this Court in part, setting aside the order
of dismissal, on the ground that it was
disproportionate punishment, with a remit
of the matter to the Disciplinary Authority
to pass orders afresh "awarding some lesser
punishment". The writ petition, that was
indeed partly allowed, was expressed to
690 INDIAN LAW REPORTS ALLAHABAD SERIES
have been disposed of by the learned Judge
deciding it, who vide judgment and order
dated 17.04.2012 remarked:

"The charges have been made
out against the petitioner of allowing one
truck to pass on that date without having a
valid gate pass.

The petitioner's services have
been brought to an end for one single
incident.

It
has
been
stated
by
the
petitioner in para 25 of the writ petition
that two other class IV employees were also
present along with the petitioner but they
have not been faced with any kind of
punishment. This factum is not denied in
the counter affidavit filed by the State.

In the counter affidavit filed by
the State other than this incident, no other
reference has been made out to the past or
previous conduct of the petitioner which
was against the interest of the department.

It is also not denied by the State
that there were two other persons posted
along with the petitioner on the same night
and they have not been given any
punishment.

For a single act of carelessness
and negligence, it is only the petitioner who
has been given the extreme punishment of
termination from service.

The appellate authority while
imposing punishment has not made any
discussion
as
to
why
this
extreme
punishment alone would be justified in the
facts and circumstances of the case.

In my opinion, the punishment
which has been imposed on the petitioner
of
termination
is
too
harsh
and
disproportionate to the charges which have
been found against him. Therefore I set
aside the order of termination. The matter
is remitted to the punishing authority for
awarding some lesser punishment, which it
thinks fit and appropriate in the facts and
circumstances. The matter of awarding
lesser punishment may be decided by the
authority within a period of three months
from the date of placing this order before
the authority concerned. This order may be
placed
before
the
authority
by
the
petitioner within ten days from today.
Certified copy of this order may be given to
the petitioner on payment of usual charges
within 48 hours.

The writ petition is disposed of as
above. No costs."

4. In compliance with this order, the
petitioner was treated to have been
reinstated in service, but continuing under
suspension w.e.f. 17.04.2012, to wit, the
date of our judgment passed in Writ-A
No.20574 of 2008. A show cause notice
was issued to the petitioner on 09.07.2012,
annexing therewith a copy of the inquiry
report, on the foot of which the order of
dismissal from service, since quashed by
this Court, was founded. The show cause
notice dated 09.07.2012 deserves to be
quoted for the relevant part thereof:

"आपके सवरूद्ध िारी आरोप पत्र के क्रम में िांच
असधकारी द्वारा अपनी िांच ररपोर् (प्रमासणत प्रसत ंिग्न) में भी
आरोपों के आपके सवरूद्ध प्रमासणत होना पाया गया है। अतः
आपको सनिेसशत सकया िाता है सक आप नोसर् प्रासि के तीन सिन
के भीतर िांच ररपोर्ग के ंिभग में अपना सिसखत असभकथन
अधोहस्ताक्षरी के मक्ष प्रस्तुत करते हुए कारण बताएं सक क्यों न
आपके सवरूद्ध आरोप प्रमासणत पाये िाने के फिस्वरूप आपको
 ेवा े हर्ा सिया (ररमूवि कर सिया) िाए।

इ ंबंध में यसि आपको व्यसक्तगत रूप े कुछ
कहना है तो आप सिनांक 12.07.2012 को प्रातः 11 बिे मेरे
 मक्ष उपसस्थत होकर अपना पक्ष प्रस्तुत कर कते हैं।"
(emphasis by Court)

5. The petitioner submitted a reply
to the show cause notice and shorn of
unnecessary detail about the technical
2 All. Sripal Giri Vs. State of U.P. & Ors.
691
pleas, which the petitioner raised in his
reply dated 10.07.2012, all that need be
said is that the Joint Commissioner (Trade
Tax), holding charge of the Deputy
Commissioner
(Administration),
Commercial Tax, NOIDA, proceeded to
pass an order dated 19.07.2012, reinstating
the petitioner in service, but nevertheless
punishing him. It is the part of the order
dated 19.07.2012, imposing punishment
upon the petitioner, which is impugned in
the present writ petition and shall be
referred to hereinafter as 'the impugned
order'.

6. Aggrieved by the impugned
order, the petitioner has instituted this writ
petition
under
Article
226
of
the
Constitution.

7. Parties having exchanged affidavits,
the writ petition was admitted to hearing on
05.08.2024, which proceeded forthwith but
remained inconclusive on that day. The
hearing was adjourned to the following day
i.e. 06.08.2024, when learned Counsel for
the parties concluded their submissions.
Judgment was reserved.

8. Heard Mr. H.M.B. Sinha, learned
Counsel for the petitioner and Ms. Monika
Arya, learned Additional Chief Standing
Counsel appearing on behalf of the State,
representing all the respondents.

9. Though not directly in issue, but
related to the proceedings, is the show
cause notice dated 09.07.2012, that was
issued after this Court set aside the order of
dismissal and remitted the matter to the
Disciplinary Authority to make fresh
orders, awarding some lesser punishment.
The clear purport of the order dated
17.04.2012, that this Court passed, was that
the lesser punishment to be awarded, was
to be a non-terminal punishment. However,
the show cause notice dated 09.07.2012,
that
was
issued
by
the
Deputy
Commissioner
(Administration),
Commercial Tax, NOIDA, asked the
petitioner to show cause why in view of the
findings of the Inquiry Officer, he may not
be removed from service. The issue has
largely become academic now since a final
order has been made, punishing the
petitioner with a non-terminal punishment,
now impugned, but it is very exceptionable
that
the
Deputy
Commissioner
(Administration),
Commercial
Tax,
NOIDA should have issued a show cause
notice, asking the petitioner why he should
not be removed from service. The show
cause notice dated 09.07.2012 is clearly in
violation of our order dated 17.04.2012
passed in Writ-A No.20574 of 2008. As
already remarked, since the proceedings
having culminated in a non-terminal order
of punishment, we rest the matter here; of
course, recording our disapproval to the
contents of the show cause notice dated
09.07.2012.

10. We must remark here that the
office of the present writ petition is limited
to see if the impugned punishment, now
awarded, is valid in law. The question of
guilt is no longer open to the petitioner to
assail in view of the curtailment of the
petitioner's right to question it by the
judgment of this Court dated 17.04.2012
passed in Writ-A No.20574 of 2008. That
judgment of ours upholds the petitioner's
guilt, but quashes the order of dismissal
from service on the ground of quantum, or
so to speak, though the expression is not
employed there, the punishment being
'shockingly disproportionate'. It is in the
perspective of these limitations that Mr.
H.M.B. Sinha, learned Counsel for the
petitioner was truly livid in his criticism of
692 INDIAN LAW REPORTS ALLAHABAD SERIES
the order impugned. He submits that the
punishment awarded by the impugned
order is still 'shockingly disproportionate',
considering the nature and the gravity of
the charges, which are trivial in nature and
do not at all warrant the imposition of a
major penalty. He emphasizes that the
petitioner's integrity and dedication has not
been doubted. To the contrary, these have
been endorsed by the Inquiry Officer.

11. It is argued by the learned Counsel
for the petitioner that the entire service
record of his is unblemished. It is said that
the impugned punishment brings his entire
career to a naught, inasmuch as the period
from 14.03.2000 to 20.04.2012 is not to be
reckoned for any purpose, including
pensionary benefits. The other part of the
order, by which the petitioner has been
punished with a reduction to the minimum
stage in the ordinary time-scale for a Sewak
permanently, is criticized as shockingly
disproportionate punishment awarded to
the petitioner, not at all commensurate to
the charges found proved. The other
direction, not to pay any salary to the
petitioner for the period of suspension
except the subsistence allowance, as if it
were a part of the punishment, has been
assailed as illegal. Mr. Sinha submits that a
direction not to pay salary to an employee
upon reinstatement beyond his subsistence
allowance paid during the period of
suspension is not a punishment under the
Uttar
Pradesh
Government
Servants
(Discipline and Appeal) Rules, 1999 (for
short, 'the Rules of 1999'). He submits that
salary for the period of suspension can be
denied, in full or part, after following the
procedure prescribed for the purpose under
Fundamental Rule 54-B of the Civil
Service
(Classification,
Control
and
Appeal) Rules, 1930, as applicable in Uttar
Pradesh (for short, 'the CCA Rules').
12. It is further submitted by Mr.
Sinha that the impugned order to the extent
that it punishes the petitioner is grossly
arbitrary and violative of Articles 14 and 16
of the Constitution, inasmuch as admittedly
three men were assigned identical duties of
holding guard at the check-post and the
allegations against them are not similar, but
identical, to wit, permitting one vehicle to
escape without getting its papers checked.
However, out of the three employees, two
have been completely exonerated, with no
action and the petitioner has been singled
out without any distinguishing feature
being there about him. He has been made a
scapegoat and visited with disproportionate
penalty.

13. Ms. Monika Arya, learned
Additional Chief Standing, on the other
hand, submits that the petitioner has been
reinstated in service and not awarded any
terminal penalty in compliance with this
Court's order. So far as the quantum of
punishment is concerned, it is within the
province of the Disciplinary Authority, and,
this Court cannot interfere with the
quantum
unless
it
be
shockingly
disproportionate. She submits that the
element about the punishment being
shockingly
disproportionate
stands
eliminated with the award of a nonterminal punishment. It does not lie in the
petitioner's mouth or this Court's domain
to dictate to the Disciplinary Authority
precisely what punishment is to be awarded
to the petitioner.

14. We have carefully considered
the rival submissions advanced by learned
Counsel for both parties and perused the
record.

15. The punishment, that has been
awarded to the petitioner, has three
2 All. Sripal Giri Vs. State of U.P. & Ors.
693
components to it, which can be parsed as
follows:

(i)
The
petitioner,
upon
reinstatement in service as a Sewak, would
stand reverted to the minimum stage in the
ordinary time-scale, instead of the first
promotion pay-scale that he was receiving
at the time of suspension from service;

(ii) The petitioner, during the
entire period of suspension from service,
would receive no other emoluments, except
his subsistence allowance; and,

(iii) The entire period from
14.03.2000 to 24.04.2012, to wit, the date
of the petitioner's dismissal from service
and the date that he presented his joining
report, respectively, would be regarded as
break in service and this period shall not
reckon towards any service benefit.

16. The penalties, which may be
awarded to a government servant, are spelt
out by Rule 3 of the Rules of 1999. The
penalties are broadly classified into minor
and major penalties. Rule 3 of the Rules of
1999 reads:

"3. Penalties.-

The following penalties may, for
good
and
sufficient
reason
and
as
hereinafter provided, be imposed upon the
Government Servants :

Minor Penalties:
 (i) Censure;

(ii) Withholding of increments for
a specified period;

(iii) Stoppage at an efficiency
bar;

(iv) Recovery from pay of the
whole or part of any pecuniary loss caused
to Government by negligence or breach of
orders;
 (v) Fine in case of persons
holding Group 'D' posts : provided that the
amount of such fine shall in no case exceed
twenty five per cent of the month's pay in
which the fine is imposed.
 Major Penalties:

(i) Withholding of increments
with cumulative effect;
 (ii) Reduction to a lower post or
grade or time scale or to a lower stage in a
time scale;

(iii) Removal from the service
which does not disqualify from future
employment;

(iv) Dismissal from the service
which
disqualifies
from
future
employment.

Explanation.- The following shall
not amount to penalty within the meaning
of this rule, namely :

(i) Withholding of increment of a
Government servant for failure to pass a
departmental examination or for failure to
fulfil any other condition in accordance
with the rules or orders governing the
service;

(ii) Stoppage at the efficiency bar
in the time scale of pay on account of ones
not being found fit to cross the efficient
bar;

(iii)
Reversion
of
a
person
appointed on probation to the service
during or at the end of the period of
probation in accordance with the terms of
appointment or the rules and orders
governing such probation;

(iv) Termination of the service of
a person appointed on probation during or
at end of the period of probation in
accordance with the terms of the service or
the rules and orders governing such
probation."

17.
Clearly,
the
penalty
of
reduction to the lowest grade in the timescale awarded to the petitioner falls in the
category of a major penalty under Rule
694 INDIAN LAW REPORTS ALLAHABAD SERIES
3(ii) of the part of the Rule dealing with
major
penalties.
The
nature
of
the
misconduct, that has been found for the
petitioner, has been opined by this Court
vide
the
judgment
and
order dated
17.04.2012 passed in Writ-A No.20574 of
2008 as "a single act of carelessness and
negligence". This Court has frowned upon
the fact that the petitioner was singled out
for the award of extreme penalty of
termination whereas the other two Sewak,
who
had
identical
duties
and
responsibilities to check papers of vehicles,
passing through the check-post, were not
awarded any punishment at all. The
punishment of termination, as this Court
has described in the judgment under
reference, which really refers to the order
of dismissal earlier passed against the
petitioner, since quashed, has been opined
to be too harsh and disproportionate to the
charges found proved. The matter was
remitted to the Disciplinary Authority for
the purpose of awarding some lesser
punishment. While it is true, as Ms.
Monika Arya submits that we cannot
dictate the Disciplinary Authority the
punishment to be awarded in a case where
the guilt is found proved, but can only
interfere on grounds of the penalty being
shockingly disproportionate can it be said
that having once regarded the penalty
earlier
awarded
as
shockingly
disproportionate, we are precluded from
holding that a slightly lesser punishment
awarded
for
a
minor
infraction
or
misdemeanour by the government servant
concerned, cannot again be regarded by us
as shockingly disproportionate. We do not
think so.

18. The penalty of dismissal from
service was indeed outrageous for the
misconduct found proved against the
petitioner. It was a case where a solitary
vehicle got away from the check-post under
the charge of three Sewak, all Group-D
employees,
without
its
papers
being
checked. It was given a chase and
apprehended. It did not lead to any loss of
revenue for the State. These three men
were performing their duties of checking
papers for the passing vehicles in the night
intervening 06/07.07.1995 at the Mohan
Nagar Check-post from 9.00 p.m. to 7.00
a.m. The petitioner seems to have a clean
record and this is the only misconduct
found proved against him. Though not a
ground in any manner to exonerate the
petitioner, it is indeed surprising that the
other
two
similarly
circumstanced
employees, assigned identical duties at the
check-post, have not been penalized at all.
In these circumstances, cumulatively taken
the award of a major penalty of reduction
to the lowest grade in the time-scale, which
involves a perpetual reduction, indeed
seems
to
be
again
shockingly
disproportionate. There is no principle, by
which our conscience once shocked, cannot
be twice shaken. Reduction to the lowest
grade in the time-scale perpetually for a
Group-D employee, like the petitioner, is
almost as shocking as his earlier dismissal.
We hold accordingly.

19. Though not our province to direct
the award of a particular penalty or award it
ourselves in substitution of the Disciplinary
Authority's discretion in this regard, given
the misconduct found proved against the
petitioner and the way the respondents have
dealt with him so far, we would have
thought of restricting the respondents'
discretion in the matter to the award of one
or the other of the minor penalties that they
thought commensurate. But, we notice that
the petitioner has retired from service
pending this petition. Therefore, we leave
the respondents free to award such
2 All. Sripal Giri Vs. State of U.P. & Ors.
695
punishment to the petitioner, as the Rules
permit, commensurate to his guilt. If it is
permissible under the Rules to award some
punishment to the petitioner, now a retired
employee, our remarks about the shocking
disproportionality of the major penalty
awarded by the order impugned shall be
borne
in
mind
by
the
Disciplinary
Authority.

20. A corollary of the question is :
What penalty can now be imposed upon the
petitioner, who is a retired employee?
While there is no cavil about the principle
that any inquiry commenced while the
employee was in service can continue after
his retirement, without the necessity of a
sanction by the Governor under Article
351-A of the Civil Service Regulations (for
short 'CSR'), the question, however, is if
all those penalties that could be imposed
while the employee was in service can be
awarded. In case of government servants
serving the Government of Uttar Pradesh,
the rules applicable would limit the power
of punishment to that postulated under
Article 351-A of the CSR. The power
under Article 351-A can be exercised by
the Governor alone and no one else. The
punishments are limited to the withholding
or withdrawing of pension or any part of it,
besides the right of ordering recovery from
the pension. In this connection, reference
may be made to the Bench decision of this
Court in Gaya Prasad Yadav v. State of
U.P. through Principal Secretary and
another, 2022 SCC OnLine All 685. In
Gaya Prasad Yadav (supra), which
related to a Constable of the Armed Police,
the following remarks of their Lordships
are apposite :

31. The question, therefore, in
this case to be considered as to whether any
such rule, as discussed in the case of
Rabindranath Choubey (supra) by the
Hon'ble Supreme Court exists in the
Conduct, Discipline and Appeal Rules
governing the appellant-petitioner.

32. The State Government in
exercise of its powers vested in it under the
Police Act, 1861 has framed "The U.P.
Police
Officers
of
the
Subordinate
Ranks(Punishment and Appeal) Rules,
1991". The Rules are statutory in nature.
Two types of punishment are provided in
Rule 4, according to which major penalties
include (i) dismissal from service, (ii)
removal from service and, (iii) reduction in
rank including reduction to a lower-scale or
to a lower stage in a time scale whereas
minor penalties include (i) withholding of
promotion, (ii) fine not exceeding one
month's pay, (iii) withholding of increment,
including stoppage at an efficiency bar and,
(iv) Censure. The procedure for award of
punishment is provided in Rule 14.

33. Rule 14(1) provides for the
procedure for major penalty, according to
which the proceedings are to be conducted
in accordance with the procedure laid down
in appendix-I appended to the Rules. Rule
14(2) states that minor penalty may be
imposed after informing the Police Officer
in writing of the action to be proposed to be
taken against him and what imputation of
the act or omission on which action is
proposed to be taken after giving him
reasonable
opportunity
of
making
representation.

34. In U.P. Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 there is no provision
akin to the provision of 34.2 of the
Discipline and Appeal Rules, as discussed
in the case of Rabindranath Choubey
(supra). Even the Civil Service Regulations
does not contain any such rule or provision
which may permit passing of order of
dismissal or for that matter any other
696 INDIAN LAW REPORTS ALLAHABAD SERIES
penalty in case the employee has retired.
Learned State Counsel has also not been
able to place any such rule before us.

35. In absence of any rule, which
permits imposition of punishment of
dismissal after retirement or which deems
the employee-employer relationship to be
continued even after retirement for the
purposes of disciplinary proceedings, in our
opinion, the judgment of Hon'ble Supreme
Court in the case of Rabindranath Choubey
(supra) does not have any application in
this case. Accordingly the reliance placed
by the learned State Counsel on the said
judgment
is
misplaced.
As
already
observed above, Hon'ble Supreme Court in
the case of Prabhakar Sadashiv Karvade
(supra) has clearly held that penalty of
dismissal cannot be imposed on an
officer/employee after his retirement after
attaining the age of superannuation unless
there exists a specific rule in that behalf. If
the disciplinary enquiry is instituted prior
to retirement of the employee concerned,
the same will continue by operation of
Article 351A of Civil Service Regulations
as held by Hon'ble Supreme Court in the
case
of
Harihar
Bholenath
(supra).
However, in such a case if the employee is
found to be guilty of grave misconduct of
or is found to have caused pecuniary loss to
the Government, it is the Governor who
can take action as provided in Article 351A of the Civil Service Regulations.

21. It may be remarked here that under
the Rules of 1999 are the CSR and there is
no fiction of the kind involved in Rule 13.2
of the Conduct, Discipline and Appeal
Rules, that applied in Chairman-cumManaging
Director,
Mahanadi
Coalfields
Limited
v.
Rabindranath
Chaubey, (2020) 18 SCC 71. Under the
Rules involved in Mahanadi Coalfields
Limited (supra), a legal fiction is there,
providing that if disciplinary proceedings
are instituted prior to retirement of an
employee, those proceedings shall not only
be deemed to be proceedings after
retirement, but the proceedings shall be
concluded in the same manner as if the
employee had continued in service. It was a
rule of this kind involved in Mahanadi
Coalfields Limited that led their Lordships
of the Supreme Court to conclude that a
major penalty can be imposed on the
employee there. But, in this case, as in
Gaya Prasad Yadav, no such rule has
been brought to the Court's notice. These
remarks of ours shall be borne in mind by
the Disciplinary Authority while deciding
upon the penalty to be imposed upon the
petitioner commensurate to his misconduct.
It will also be borne in mind as to who is
the competent authority now, who may
award the appropriate penalty to the
petitioner.

22. The other limb of the penalties,
that have been imposed, is deprivation of
emoluments for the period of suspension,
over and above the subsistence allowance,
payable or paid. A look at Rule 3 of the
Rules of 1999 does not show that
deprivation of emoluments, during the
period of suspension, is in fact any kind of
penalty, that may be imposed upon a
government servant found derelict in
disciplinary proceedings.

23. Rule 4 of the Rules of 1999 speaks
of suspension and Rule 5 about pay and
allowances
etc.
for
the
period
of
suspension. Rule 5 is relevant to the point,
that arises here for consideration. It reads:

"5. Pay and allowance etc. of
the suspension period.- After the order is
passed in the departmental enquiry on the
basis of criminal case, as the case may be,
2 All. Sripal Giri Vs. State of U.P. & Ors.
697
under these rules, the decision as to the pay
and allowances of the suspension period of
the concerned Government servant and also
whether the said period shall be treated as
spent on duty or not, shall be taken by the
disciplinary authority after giving a notice
to the said Government servant and calling
for his explanation within a specified
period under Rule 54 of the Financial Hand
Book, Volume-II, Parts II to IV."

24. Fundamental Rule 54 of the
Financial Hand Book, Volume-II, Parts II
to IV, provides:

"54. (1) When a Government
servant who has been dismissed, removed
or compulsorily retired is reinstated as a
result of appeal or review or would have
been so reinstated but for his retirement on
superannuation while under suspension or
not, the authority competent to order
reinstatement shall consider and make a
specific order-

(a)
regarding
the
pay
and
allowances to be paid to the Government
servant for the period of his absence from
duty including the period of suspension
preceding his dismissal, removal, or
compulsory retirement, as the case be; and

(b) whether or not the said period
shall be treated as a period spent on duty.

(2)
Where
the
authority
competent to order reinstatement is of
opinion that the Government servant who
had
been
dismissed,
removed
or
compulsorily
retired,
has
been
fully
exonerated the Government servant shall,
subject to the provisions of sub-rule (6), be
paid the full pay and allowances to which
he would have been entitled, had he not
been dismissed, removed or compulsorily
retired
or
suspended
prior
to
such
dismissal,
removal
or
compulsory
retirment, as the case may be:

Provided
that
where
such
authority is of opinion that the termination
of the proceedings instituted against the
Government servant had been delayed due
to reasons directly attributable to the
Government servant, it may, after giving
him
an
opportunity
to
make
his
representation within sixty days from the
date on which the communication in this
regard is served on him and after
considering the representation, if any,
submitted by him, direct, for reasons to be
recorded in writing, that the Government
servant shall, subject to the provisions of
sub-rule (7), be paid for the period of such
delay, only such amount (not being the
whole) of such pay and allowances as it
may determine.

(3) In a case falling under subrule (2), the period of absence from duty
including
the
period
of
suspension
preceding
dismissal,
removal
or
compulsory retirement, as the case may be,
shall be treated as a period spent on duty
for all purposes.

(4) In cases other than those
covered by sub-rule (2) [including cases
where the order of dismissal, removal or
compulsory retirement from service is set
aside by the appellate or reviewing
authority
solely
on
the
ground
of
noncompliance with the requirements of
clause (1) or clause (2) of article 311 of the
Constitution and no further inquiry is
proposed to be held], the Government
servant shall, subject to the provisions of
sub-rules (6) and (7), be paid such amount
(not being the whole) of the pay and
allowances to which he would have been
entitled had he not been dismissed,
removed
or
compulsorily
retired
or
suspended prior to such dismissal, removal
or compulsory retirement, as the case may
be, as the competent authority may
determine, after giving notice to the
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Government servant of the quantum
proposed
and
after
considering
the
representation, if any, submitted by him in
that connection, within such period (which
in no case shall exceed sixty days from the
date on which the notice has been served)
as may be specified in the notice.

(5) In a case falling under subrule (4), the period of absence from duty
including
the
period
of
suspension
preceding
his
dismissal,
removal
or
compulsory retirement, as the case may be,
shall not be treated as a period spent on
duty, unless the competent authority
specifically directs that it shall be so treated
for any specified purpose:

Provided that if the Government
servant so desires such authority may direct
that the period of absence from duty
including
the
period
of
suspension
preceding
his
dismissal,
removal
or
compulsory retirement as the case may be,
shall be converted into leave of any kind
due and admissible to the Government
servant.

NOTE-The
order
of
the
competent authority under the preceding
proviso shall be absolute and no higher
sanction shall be necessary for the grant
of-

(a) extraordinary leave in excess
of three months in the case of temporary
Government servant; and

(b) leave of any kind in excess of
five years in the case of permanent
Government servant.

(6) The payment of allowances
under sub-rule (2) of sub-rule (4) shall be
subject to all other conditions under which
such allowances are admissible.

(7) The amount determined under
the proviso to sub-rule (2) or under sub-rule
(4), shall not be less than the subsistence
allowance and other allowances admissible
under rule 53.

(8) Any payment made under this
rule to a Government servant on his
reinstatement shall be subject to adjustment
of the amount, if any, earned by him
through an employment during the period
between the date of his removal, dismissal
or compulsory retirement, as the case may
be, and the date of reinstatement.