# Sunder Lal v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-13
- **Case number:** Writ-A No. 8849 of 2018
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunder-lal-v-state-of-u-p-anr-52323
- **Pages:** 6

## Headnote

A. Civil Law - Disciplinary Proceedings -
U.P. State Warehousing Corporation Staff
Regulations,
1966
-
Rule
16(1)
-
Imposition of penalties - For imposing a
penalty in the nature of recovery, it is
necessary to hold a formal enquiry,
provide
the
delinquent
employee
an
opportunity to offer a written explanation,
cross-examine witnesses, if any, and
produce evidence in defence (Para 13)

B. Civil Law - Disciplinary Proceedings
After
Retirement
-
U.P.
State
Warehousing
Corporation
Staff Regulations, 1966 - The Regulations
do not contain any provision for the
continuation of disciplinary proceedings
or
imposition
of
penalties
after
an
employee's retirement. (Para 16)
8 All. Sunder Lal Vs. State of U.P. & Anr.
327
C. Petitioner, a Warehouse Assistant, was
removed from service, and a recovery of
₹27,21,930.26 was directed - Enquiry
Officer, without fixing any date, time, or
place
for
the
enquiry,
and
without
providing an opportunity to cross-examine
witnesses,
acting
in
breach
of
the
principles of natural justice submitted his
enquiry report - Neither the Enquiry
Officer nor the Disciplinary Authority
considered the petitioner's reply - findings
were based on documentary evidence
produced before the Enquiry Officer in the
petitioner's absence - Held: The enquiry
was flawed due to non-compliance with
the prescribed procedure - Impugned
order quashed (Para 13, 14)

Allowed. (E-5)

List of Cases cited:

## Text

326 INDIAN LAW REPORTS ALLAHABAD SERIES
such as a dispute arising out of contract or
under the common law."

13. The service contract of the
petitioner with Raj Kumar Goel Institute of
Technology is also a private contract of
service having no statutory force or
backing and, therefore, any rights arising
out of that contract or denial thereof would
not be amenable to challenge under Article
226 of the Constitution of India.

14. Although by way of amendment
the
petitioner
has
alleged
that
the
resignation is forged but this plea has only
been raised after the Director of the
Institute had filed his personal affidavit
bringing on record the fact that the
petitioner has resigned from service and he
has received his dues. The petitioner has
concealed this fact by filing the writ
petition that he has already received all his
service related dues after termination of his
service. The aforesaid plea incorporated by
way of amendment after the fact of
resignation made by the petitioner and
receipt of entire dues was brought on
record, appears to be afterthought. Besides,
it seeks to raise the disputed questions of
fact, which could be gone into by this Court
in exercise of its writ jurisdiction under
Article 226 of the Constitution of India.

15. Even after amending the writ
petition, the petitioner has not incorporated
any pea in the writ petition explaining the
receipt of entire service dues by him in the
year 2022 and non disclosure thereof in the
writ petition. The aforesaid conduct of the
petitioner in not approaching this Court
with clean hands and in concealing certain
relevant and material facts from this Court,
also disentitles the petitioner from seeking
any relief from this Court in exercise of its
extraordinary
discretionary
writ
jurisdiction.

16. In view of the aforesaid
discussion, this Court is of the considered
view that the writ petition is without any
merit and the same is dismissed as such.
----------
(2024) 8 ILRA 326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 8849 of 2018

Sunder Lal ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Ashutosh Tripathi

Counsel for the Respondents:
C.S.C., Om Prakash Singh (Sr. Advocate),
Sushil Kumar Rao

A. Civil Law - Disciplinary Proceedings -
U.P. State Warehousing Corporation Staff
Regulations,
1966
-
Rule
16(1)
-
Imposition of penalties - For imposing a
penalty in the nature of recovery, it is
necessary to hold a formal enquiry,
provide
the
delinquent
employee
an
opportunity to offer a written explanation,
cross-examine witnesses, if any, and
produce evidence in defence (Para 13)

B. Civil Law - Disciplinary Proceedings
After
Retirement
-
U.P.
State
Warehousing
Corporation
Staff Regulations, 1966 - The Regulations
do not contain any provision for the
continuation of disciplinary proceedings
or
imposition
of
penalties
after
an
employee's retirement. (Para 16)
8 All. Sunder Lal Vs. State of U.P. & Anr.
327
C. Petitioner, a Warehouse Assistant, was
removed from service, and a recovery of
₹27,21,930.26 was directed - Enquiry
Officer, without fixing any date, time, or
place
for
the
enquiry,
and
without
providing an opportunity to cross-examine
witnesses,
acting
in
breach
of
the
principles of natural justice submitted his
enquiry report - Neither the Enquiry
Officer nor the Disciplinary Authority
considered the petitioner's reply - findings
were based on documentary evidence
produced before the Enquiry Officer in the
petitioner's absence - Held: The enquiry
was flawed due to non-compliance with
the prescribed procedure - Impugned
order quashed (Para 13, 14)

Allowed. (E-5)

List of Cases cited:

1. Shyam Narain Gaur Vs St. of U.P. & ors.

2. Radhey Kant Khare Vs U.P. Co-Operative
Sugar 2003 (1) AWC 704

3. Managing Director Ecil Hyderabad etc. Vs B.
Karunakar etc., (1993) 4 SCC 727

4. Salahuddin Ansari Vs St. of U.P. & ors.,
2008(3) ESC 1667

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

1. Heard Shri Ashutosh Tripathi,
learned counsel for the petitioner and Shri
O.P. Singh, learned Senior Advocate
assisted by Shri Shushil Kumar Rao,
learned counsel for the respondent.

2. Shri O.P. Singh, learned Senior
Advocate
states
that
disciplinary
proceedings had started prior to retirement
and there is no defect in the order imposing
penalty after retirement.

3. The petitioner Sunder Lal was a
Warehouse Assistant of the U.P. State
Warehousing Corporation. He has filed this
petition challenging the order of removal
from service on the ground that the entire
domestic
enquiry
in
the
matter
of
disciplinary proceedings instituted against
him was flawed one as the procedures
prescribed under relevant Regulations,
1966 were not followed. Petitioner was
served with a charge-sheet on 26.05.2014
to which he submitted his reply on
14.07.2014.
An
enquiry
report
was
submitted on 16.07.2015 and the impugned
decision was taken on 24.10.2016 on the
basis of the enquiry report. Thus, according
to the charge-sheet, petitioner was not able
to discharge his duties properly and hence
it amounted to misconduct. Resultantly, the
order was passed by the Managing Director
directing for recovery of Rs 27,21,930.26/-
from the salary and other dues to which the
petitioner was entitled in law.

4. The submission advanced by the
learned counsel for the petitioner is that
petitioner was charge sheeted by holding a
regular disciplinary proceedings and hence,
the Disciplinary Authority was under
obligation of law to conclude the entire
proceedings
as
per
the
procedure
prescribed. He submits that when the
departmental enquiry was being conducted,
petitioner was not given any opportunity to
participate in the enquiry as no date and
time was fixed, nor any place was decided
to hold enquiry so as to permit petitioner
due participation. It is thus argued that in
the absence of any opportunity being
afforded to the petitioner to participate in
the enquiry, the entire enquiry was ex-parte
and so was the report.

5. He further submits that neither the
Enquiry Officer considered his reply
submitted
in
the
charge-sheet,
nor
Disciplinary Authority while passing the
order considered the reply given by the
328 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner in response to the notice issued to
him. It is also contended by the learned
counsel for the petitioner that enquiry could
not have been continued after the petitioner
had attained the age of superannuation, in
the absence of provisions to that effect
under the relevant regulations.

6. In support of his argument, learned
counsel for the petitioner has relied upon
Regulation 16(3) of the Regulations, 1966.
He has also placed reliance upon the
judgement of the Division Bench of this
Court in case of Shyam Narain Gaur vs.
State of U.P. and 2 Others, which was
also in respect of the employ of the
Warehousing Corporation. He has also
placed reliance upon Radhey Kant Khare
vs. U.P. Co-Operative Sugar 2003 (1)
AWC 704. Learned counsel has also placed
reliance upon the judgement of the
Supreme Court in the matter of Managing
Director Ecil Hyderabad etc. vs B.
Karunakar etc., (1993) 4 SCC 727.

7. Per Contra, it is argued by Shri
O.P. Singh, learned Senior Advocate
appearing
for
respondnet-Warehousing
Corporation that it is not a strict rule to
provide oral participation to the employee
and the opportunity of cross-examination in
the event the documents relied upon are not
disputed. However, he could not dispute
the principle laid down by the Constitution
Bench in the case of Salahuddin Ansari
Vs. State of U.P. and others, 2008(3) ESC
1667 and Division Bench of this Court in
the case of Shyam Narain Gaur (Supra)
wherein,
identicals,
facts
and
circumstances, order of punishment and the
enquiry report was quashed and matters
were remitted to be proceeded from the
stage of charge-sheet. He further states that
if the enquiry had already been initiated
prior to retirement, then there was nothing
bad in terms of procedure and law to
continue with the enquiry and resultant
punishment.

8. It is an argument now raised by the
learned counsel appearing for the petitioner
that since petitioner has retired, so the
matter should not be remitted to be
enquired into afresh for the reason that
regulations do not permit for continuation
of disciplinary proceedings after retirement.
He has placed reliance upon the Chapter IV
of the Regulations, 1966 which deals with
the
conduct
of
the
employees
and
imposition of penalties and the procedure
prescribed for.

9. Having heard learned counsel for
the respective parties and having perused
the records, I find that a specific plea has
been taken in paragraph Nos. 9 and 10 of
the writ petition to the effect that no date,
time and place was fixed for holding oral
enquiry. Thus, it is pleaded specifically in
these paragraphs that the petitioner had no
opportunity to participate in the enquiry
and to get himself orally examined and
cross-examined
by
the
departmental
witnesses.

10. Paragraph Nos. 9 and 10 of the
writ petition run as under:

"9. That thereafter the enquiry
officer without fixing any date, time and
place for holding of enquiry, without giving
any opportunity to cross examine the
witnesses, and acting in breach of principle
of natural justice submitted his enquiry
report dated 16.7.2015 to the disciplinary
authority for further action, holding the
petitioner guilty of the charges. A copy of
the enquiry report dated 16.7.2015 is being
filed herewith and marked as Annexure no.
3 to this writ petition.
8 All. Sunder Lal Vs. State of U.P. & Anr.
329

10. That it is notable that the
enquiry officer did not conduct any enquiry
in the matter and did not issue any notice
fixing a date time and place for holding the
enquiry to the petitioner and straight away
submitted his enquiry report holding the
petitioner guilty of the charges."

11. From the perusal of the aforesaid
pleadings, it clearly transpires that no date,
time and place was fixed for oral enquiry.
The petitioner was not afforded any
opportunity to participate in the enquiry
and it has also not been specifically denied.
Here it is necessary to refer to Regulation
16(3) of the Regulation, 1966 applicable to
the
employees
of
the
corporation.
Regulation 16(3) is reproduced hereunder:

"3) No punishment other than
that specified in sub-para (1) (a), (1) (b) or
(1) (c) shall be imposed on any employee
without formal charges being framed
against him and without giving him an
opportunity for tendering an explaination
in writing and cross examining the
witnesses against him, if any, and of
producing evidence in defence;

Provided that punishment to an
employee on deputation from the Central
Government, a State Government or a
Government Institution shall be imposed
only in accordance with the procedure and
rules laid down in this behalf in his parent
service."

12. From a bare reading of the
aforesaid regulations, it is clear that only
punishment prescribed under Sub-Rule
(1)(b) and (1)(c) can be imposed without
holding a formal enquiry, but in the matter
of other punishments, a formal enquiry was
must. Rule 16(1)(a) to 16(1)(g) that
provides for recovery runs as under"

"(a) fine

(b) censure

(c) postponement or stoppage o
increments or promotion,

(d) reduction to a lower post in
his permanent class or to a lower stage in
his incremental scale,

(e) recovery from pay, security
deposit or otherwise of the whole or part of
the
pecuniary
loss
caused
to
the
Corporation by the employee,

(f) removal,

(g) dismissal,

Provided that the penalty of fine
shall be imposed on employees of class III
only."

13. Thus, it is clear that for imposing
a penalty in the nature of recovery, it is
necessary to hold a regular formal enquiry
and to give opportunity to the delinquent
employee not only to offer explanation in
writing but to cross-examine the witnesses
against him, if any, and also to produce
evidence in defence. This opportunity,
having been denied by the respondents
while conducting enquiry will certainly
render the enquiry a flawed enquiry for
want
of
compliance
of
prescribed
procedure.

14. Besides the above, I further notice
that the petitioner's reply in the enquiry
report has just been referred to and there is
no discussion as to why the reply made
could not be relied upon. The finding is
based upon documentary evidence which
were produced before the enquiry Officer
in the absence of the petitioner. Thus, the
findings returned in the enquiry report are
certainly ex-parte. This report has been
relied upon by the Managing Director in
arriving at a conclusion that the petitioner
was rightly held guilty but the aspect of
non-compliance of the regulations as far as
330 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure for holding formal enquiry for
imposing penalty of recovery, was not
taken care of.

15. The Division Bench judgment
cited before me in the case of Shyam
Narain Gaur (supra) is of the same
establishment in which also oral enquiry
was not held. The Court took an exception
of this procedure and remitted the matter
thus:

"The records indicate that upon
issuance of the charge-sheet, the petitioner
submitted a detailed reply and it is only
after the submission of the reply filed by the
petitioner that the Enquiry Officer has
submitted his report. Apart from the fact
that no evidence was led by the department
to prove the charges, the Enquiry Officer
has not even considered the reply filed by
the
petitioner
and
only
a
casual
observation has been made that evidence
was not led by the petitioner to disprove the
charges. It was for the department to have
proved the charges by leading proper
evidence but that was not done. This apart,
even the reply submitted by the petitioner
has not been considered. It is on the basis
of the enquiry report that the punishment
has been imposed upon the petitioner. In
fact, it transpires that the charge-sheet was
served on the petitioner on 26 May 2014.
The petitioner submitted a reply on 14 July
2014 and the Enquiry Officer has submitted
a report on 16 July 2014 within two days of
the submission of the reply.

The
Appellate
Authority
has
failed to examine this aspect and, therefore,
the order passed on 27 February 2016 to
reject the appeal filed by the petitioner
cannot also be sustained. The orders are,
accordingly, set aside. It shall, however, be
open to the respondents to conduct a fresh
enquiry from the stage of submission of the
charge-sheet and the reply filed by the
petitioner, if it is permissible under the
Regulations, in accordance with law."

16. Shri O.P. Singh, learned Senior
Advocate though has contended that the
Government Servant Rules provide for
imposition of penalty even after the
retirement if the proceedings had been
initiated prior to the retirement. However,
he could not cite any provision of law
under which disciplinary proceedings could
have been continued even after the
retirement. Even if it is taken to be
presumable that if employee has been
subjected to the disciplinary proceedings
then it can be brought to its logical end
even if the employee has retired but
nothing has been shown that such a rule has
been
adopted
by
the
Warehousing
Corporation. In the given facts and
circumstances when the petitioner is no
more
employee
of
the
Warehousing
Corporation, it would not be appropriate
now to order him to face the departmental
enquiry. An employee ceases to be an
employee the moment he attains age of
superannuation. The matter has remained
ofcourse, sub-judice before this Court but
this does not mean that the department
will get an opportunity to re-enquire the
matter.

17. In such special facts and
circumstances of the case, I, therefore,
reject the argument of Shri O.P. Singh,
learned Senior Advocate that the matter can
be remitted to be enquired afresh.

18. In view of the above the order
impugned dated 24.10.2016 is hereby
quashed. Consequences to follow.

19. This writ petition stands allowed
accordingly.
8 All. Ms. Tanu Jetly Vs. The Chairman/Secretary, Army Welfare Education Society, Ministry of
 Defence, New Delhi & Ors.
331

20. There will, however, be no order
as to cost.
----------
(2024) 8 ILRA 331
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 8981 of 2024

Ms. Tanu Jetly ...Petitioner
Versus
The Chairman/Secretary, Army Welfare
Education Society, Ministry of Defence,
New Delhi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Malik, Sri Santosh Kumar Giri

Counsel for the Respondents:
C.S.C.

(A) Service Law - Maintainability of a Writ
Petition under Article 226 against Army
Welfare Society - not maintainable against
a private unaided educational institution,
such as Army Welfare Education Society,
which manages Army Public Schools -
relationship between employees and a
private educational institution arises out
of a private contract, which does not
involve a public law element - Army
Welfare Education Society is a private
unaided society, not a "State" under
Article 12 of the Constitution. (Para -
15,17,18 )

Petitioner working as a P.R.T. teacher in Army
Public School - contractual basis - seeking a
direction for continuance of her service - and for
regularization of her services after termination
thereof. (Para - 1 to 3)

HELD: - Writ petition not maintainable due to
lack of public law element and private contract
nature. Writ Petition filed by petitioner seeking
continuance
and
regularization
of
her
contractual service in Army Public School after
termination thereof due to efflux of contract
period not maintainable. (Para - 17 to 19)

Petition dismissed. (E-7)

List of Cases cited:

1. Army Welfare Education Society Vs Sunil
Kumar Sharma, 2024 SCC OnLine SC 1683

2. Urmila Chauhan Vs The Chairman Army
Public School & ors., S.L.P. (Civil) No. 7994 of
2022

3. St. Mary's Education Society Vs Rajendra
Prasad Bhargava, (2023) 4 SCC 498

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri. Santosh Kumar Giri
Advocate, the learned Counsel for the
petitioner, who has submitted that the
petitioner is working as a P.R.T. teacher in
Army Public School, Bareilly Cantt.,
Bareilly and she is seeking a direction for
continuance her service as such and for
regularization her services.

2. It has been pleaded in the writ
Petition that the petitioner was appointed
on the post of P.R.T. teacher in Army
Public School, Bareilly Cantt., Bareilly on
contractual basis on 19.08.2010/18.07.2010
initially for a period of two years. On
16.07.2012, the petitioner was again
appointed for a period of three years from
26.07.2012 to 25.07.2015. On 11.08.2015,
she was appointed afresh for a period of
three years. Another contract of service was
executed on 14.08.2018 for three years and
thereafter another contract of service was
executed on 20.07.2018 for the period up to
19.07.2021.

3. Lastly, the petitioner was issued an
appointment
letter
dated
27.09.2021