# Surendra Nath Pandey v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-01
- **Case number:** Writ-A No. 10682 of 2017
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-nath-pandey-v-state-of-u-p-ors-52331
- **Pages:** 6

## Headnote

(A) Service Law - The U.P. Cooperative
Societies Services Regulation, 1975 -
The U.P. Cooperative Society Service
Regulation - Regulation 27 & 28 - If very
institution of enquiry or setting up of
disciplinary proceeding is void for want
of
lawful
authority
then
any
such
consequential action pursuant to such
enquiry
and
consequential
enquiry
report is liable to be held as null and
void - Disciplinary proceedings against
seasonal employees must comply with
regulatory
requirements
-
noncompliance renders proceedings null and
void, and consequential orders based on
such proceedings are also null and void.
(Para - 11,13,14)

(B)
Word
of
phrases
-
"sublato
fundamento cadit opus" - foundation
being removed, the structure falls -
"consequential orders "- Once the basis
of a proceeding is gone, may be at a
later point of meantime, the action
taken thereon- would fall to the ground.
- principle is applicable to judicial,
quasi-judicial
and
administrative
proceedings equally. (Para - 13)

Petitioner, a Seasonal Clerk with District Cane
Services Authority - suspended in 1999 -
reinstated in 2001- Disciplinary proceedings
were initiated but not concluded - within
crushing season or specified time frame -
retired in 2009 - Proceedings initiated after
retirement were without lawful authority -
Appellate authority failed to consider relevant
regulatory provisions - Impugned orders
passed in 2015 - inflicting punishment and
denying post-retirement dues. (Para -2 to 7
,15 )

HELD: - Lack of permission and lawful
authority can lead to defective first steps,
causing the entire structure to fail. Initiating a
proceeding beyond the crushing season and
continuing it for years after a seasonal
employee's
retirement
was
unwarrant.
Disciplinary
proceedings
initiated
against
petitioner were null and void for want of
lawful authority. Impugned orders quashed.
Petitioner entitled to post-retirement dues
with
interest
at
8%
from
date
of
superannuation. Additional interest at 12% if
payment not made within two months. (Para -
14,15,16)

Petition allowed. (E-7)

List of Cases cited:

## Text

8 All. Surendra Nath Pandey Vs. State of U.P. & Ors.
375
देय्‌
समस्त्‌
लाभ्‌
यर्था्‌
िेतन्‌
आदद्‌
ननयमानुसार्‌ प्रदान्‌ ककये्‌ जाएंर्े।

7. ननरीक्षक/ननबंधक, उ०प्र०्‌
मदरसा्‌
भशक्षा्‌ पररषद, याचिकाकताग्‌ को्‌ सुनिाई्‌ का्‌
समुचित्‌
अिसर्‌
देते्‌
हुए्‌
उसके्‌
विरूदध्‌
पुनः्‌
कायगिाही्‌
संण्स्र्थत्‌
करने्‌
को्‌
स्िंतंि्‌
होंर्े।
----------
(2024) 8 ILRA 375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 10682 of 2017

Surendra Nath Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Girish Kumar Singh

Counsel for the Respondents:
C.S.C., Ravindra Singh

(A) Service Law - The U.P. Cooperative
Societies Services Regulation, 1975 -
The U.P. Cooperative Society Service
Regulation - Regulation 27 & 28 - If very
institution of enquiry or setting up of
disciplinary proceeding is void for want
of
lawful
authority
then
any
such
consequential action pursuant to such
enquiry
and
consequential
enquiry
report is liable to be held as null and
void - Disciplinary proceedings against
seasonal employees must comply with
regulatory
requirements
-
noncompliance renders proceedings null and
void, and consequential orders based on
such proceedings are also null and void.
(Para - 11,13,14)

(B)
Word
of
phrases
-
"sublato
fundamento cadit opus" - foundation
being removed, the structure falls -
"consequential orders "- Once the basis
of a proceeding is gone, may be at a
later point of meantime, the action
taken thereon- would fall to the ground.
- principle is applicable to judicial,
quasi-judicial
and
administrative
proceedings equally. (Para - 13)

Petitioner, a Seasonal Clerk with District Cane
Services Authority - suspended in 1999 -
reinstated in 2001- Disciplinary proceedings
were initiated but not concluded - within
crushing season or specified time frame -
retired in 2009 - Proceedings initiated after
retirement were without lawful authority -
Appellate authority failed to consider relevant
regulatory provisions - Impugned orders
passed in 2015 - inflicting punishment and
denying post-retirement dues. (Para -2 to 7
,15 )

HELD: - Lack of permission and lawful
authority can lead to defective first steps,
causing the entire structure to fail. Initiating a
proceeding beyond the crushing season and
continuing it for years after a seasonal
employee's
retirement
was
unwarrant.
Disciplinary
proceedings
initiated
against
petitioner were null and void for want of
lawful authority. Impugned orders quashed.
Petitioner entitled to post-retirement dues
with
interest
at
8%
from
date
of
superannuation. Additional interest at 12% if
payment not made within two months. (Para -
14,15,16)

Petition allowed. (E-7)

List of Cases cited:

1. Sharif-Ud-Din Vs Abdul Gani Lone, (1980) 1
SCC 403

2.
Krishna
Rai
(dead)
through
legal
representative & ors. Vs B.H.U. (2022) 8 SCC
713
376 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Tata Chemicals Ltd. Vs Commr. of Customs
(2015) 11 SCC 628

4. Badrinath Vs Govt of Tamil Nadu & ors. ,
(2000) 8 SCC 395

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

1. Heard Shri Girish Kumar Singh,
learned counsel for the petitioner and Shri
Ravindra Singh, learned counsel for the
respondents.

2. Petitioner Surendra Nath Pandey,
worked as a Seasonal Clerk with the 4th
respondent continuously ever since his
initial appointment made in the year 1990
until he attained the age of superannuation
on 31.08.2009.

3. In the present petition, petitioner is
aggrieved by the order passed by the
disciplinary
authority,
namely,
the
Secretary
of
District
Cane
Services
Authority, Kushinagar dated 31.01.2015
whereunder he has been held guilty of loss
to the society for his alleged misconduct,
embezzlement and resistant and further not
to count the period he has been under
suspension towards his post retirement
dues. Petitioner is also aggrieved by the
order passed by the Regional Cane Services
Authority/ Deputy Cane Commissioner,
Deoria.

4. The submission advanced by the
learned counsel for the petitioner is that
petitioner being a Seasonal employee of the
society and having continuously worked as
Seasonal Clerk is entitled to post retirement
dues admissible to such employees under
the U.P. Cooperative Societies Services
Regulation, 1975. He has placed reliance
upon the relevant Regulations 27 and 28 of
the Service Regulations in support of his
argument
that
if
the
disciplinary
proceedings drawn in respect of Seasonal
Clerks are not concluded in the same
season, then such proceedings would be
taken to have been dropped. He argues that
once the proceedings are deemed to be
dropped under the relevant Regulations, the
respondent could not have reopened the
issue after five years of his retirement.

5. Briefly stated facts of the case are
that petitioner was placed under suspension
on 09.10.1999 on the basis of a report of
the Police Superintendent, Kushinagar
dated 13.10.1997 asking him to furnish
explanations regarding certain charges of
utilizing the property of the society for
personal benefits. It transpires that the
petitioner failed to submit any reply and so
the proceedings drawn remained pending.
Petitioner was subsequently reinstated
revoking
the
suspension
order
on
15.02.2001 holding that the disciplinary
proceedings will not be adversely affected
and will continue. It transpires that some
report was submitted upon which the
resolution was adopted by the society
inflicting
punishment
and
so
the
consequential order came to be passed by
the Secretary of the District Cane Services
Authority, Kushinagar on 31.01.2015.
Petitioner's appeal was dismissed on merits
on the ground that petitioner was found
guilty in the enquiry report submitted by
specially constituted committee.

6.

Countering
the
arguments
advanced by learned counsel for the
petitioner, Shri Ravindra Singh, learned
Advocate appearing for the respondents
No. 3 and 4 submits that the order dated
15.02.2001 to reinstate the petitioner itself
provided
that disciplinary
proceeding,
already going on, will not get adversely
affected and he submits that the charges
were serious and it was not once but the
8 All. Surendra Nath Pandey Vs. State of U.P. & Ors.
377
previous conduct of the petitioner also
showed that even in the past he was
suspended and faced charges. It is argued
by Mr. Ravindra Singh, that the society was
fully justified in adopting resolution on the
basis of report submitted by the Enquiry
Committee dated 27.01.2001, however,
Shri Singh could not offer any explanation
as to what transpired for the society in
taking action after delay of 13 years from
the date of presentation of enquiry report.

7. Having heard learned counsel for
respective parties and having perused the
records, I find it to be an admitted position
on the part of the respondent that petitioner
after was placed under suspension in the
year
1999,
disciplinary
proceedings
instituted was not concluded either in the
year 1999 or in the subsequent year 2000. It
has though come on record that some
enquiry
report
was
submitted
on
27.01.2001 but what exactly was the report
is not discussed in the order impugned. All
that is discussed is that the resolution was
adopted by the society in relation to the
disciplinary proceedings going on against
the
petitioner
in
its
meeting
held
30.12.2014 and in view of the unanimous
resolution so adopted the petitioner was
liable to be inflicted with punishment as
has been inflicted upon him.

8. In order to appreciate the argument
advanced by learned counsel for the
petitioner, I have carefully gone through
the relevant provisions as contained under
Regulation 27 and 28 of the U.P.
Cooperative Society Service Regulation
that governed the Seasonal Clerks. The
relevant
Regulations
are
reproduced
hereunder:

"27.Disciplinary proceedings;- In
the event of a complaint against any
member of the seasonal staff, the secretary
of the union shall make a preliminary
enquiry and if he is satisfied that a prima
facie case is established against the person
concerned he shall intimate the same to
him in the form of charges and call for his
explanation to be submitted within a
specified time. The secretary of the union
shall examine records and submit his final
report along with definite recommendation
to the District Authority for passing final
order in the case. In case the explanation is
not received within the specified time the
secretary shall submit his final report to the
District Authority, on the basis of material
already on the file. These proceedings shall
be of a summary nature and the secretary
should not take more than a month to
complete the same. the District Authority
should also arrange to dispose of the case
within one month of the receipt of the final
report from the secretary. In case of default
on the part of secretary of the cane union
or District Authority as the case may be is
not
completing
the
disciplinary
proceedings against a seasonal staff by the
end of crushing season, the same shall be
deemed
to
have
been
automatically
dropped.

28. The procedure narrated in
regulation No. 27 shall not apply where the
person concerned has absconded or is
continuously absent from duty for a week or
where for other reasons it is impracticable to
communicate with him. In such cases the
Secretary shall submit his final report to the
Committee of Management stating the
reasons for not following the procedure laid
down in regulation No. 27 together with his
views and recommendation based on record
available for passing final orders in the
case."

9. From a bare reading of Regulation
27 and the language in which provision has
378 INDIAN LAW REPORTS ALLAHABAD SERIES
been couched, it can safely be concluded
that the proceedings against the Seasonal
Clerks by the competent authority are
summary in nature and soon after issuing
notices and receiving the reply the
Secretary should complete the proceedings
within
one
month.
The
Disciplinary
Authority is also placed under obligation to
dispose of such cases within one month of
the receipt of the final report from the
Secretary and it is also provided that if
proceedings
are
not
completed
as
prescribed
for,
then
the
enquiry
proceedings shall be deemed to be
automatically dropped. Mr. Singh during
the course of his argument admitted very
fairly that disciplinary proceedings are to
be concluded within the crushing season in
which the seasonal clerk is employed and
has been served with the notice to submit
explanation. In my considered view the
mandate of Regulation 27 would be
whether
the
reply
is
submitted
by
delinquent employee or not, the final report
of enquiry has to be submitted and action
has to be taken within a period of one
month. Once the Disciplinary Authority has
received the report, it should take decision
within a further period of one month. The
only exceptional circumstance is where a
delinquent
employee
concerned
has
absconded or has remained absent from
duty for a week or for other reason.

10. Applying the aforesaid provision
to the case in hand, I find that petitioner
having been placed under suspension by
respondents on 09.10.1999, there had been
no occasion to treat him to be an absconded
person, nor it is the case of the respondent
that he never reported for duty. The only
fact was that petitioner never submitted
reply to the notice dated 09.10.1999. The
respondent reinstated the petitioner on
15.02.2001. In my considered view in the
light
of
the
relevant
provisions
of
Regulation 27 the disciplinary proceedings
initiated
against
the
petitioner
on
09.10.1999 would be taken to have been
dropped by the end of the year 1999 or
within one month or 2 months thereafter or
at the most till the end of then cane
crushing season.

11. Even if one is to assume that with
the order dated 15.02.2001, the disciplinary
proceeding
was
revived
afresh
as
contemplated
in
the
order
revoking
suspension
of
petitioner,
the
said
proceeding could at the most be taken to
have lasted in any case, by the end of the
year 2001. In no circumstances such
proceeding could have been dragged for
awaiting the enquiry report. Still further,
once the petitioner had retired and ceased
to be employee of the society no fresh
enquiry could have been set up on
28.10.2013
by
constituting
a
new
committee for the alleged loss caused to the
society during the period 97-98. Neither the
Regulations provide for any disciplinary
proceeding to be drawn beyond the period
of two months of its initiation, nor does it
provide for continuation of proceedings
afresh after retirement. Petitioner having
retired in the year 2009 to be specific on
31.08.2009, the initiation of proceedings by
constituting
enquiry
committee
on
28.10.2013 was not only de hors the
procedure prescribed but was also null and
void for want of lawful authority under
Regulations. It is a settled legal position
that if very institution of enquiry or setting
up of disciplinary proceeding is void for
want of lawful authority then any such
consequential action pursuant to such
enquiry and consequential enquiry report is
liable to be held as null and void. In SharifUd-Din V. Abdul Gani Lone, (1980) 1
SCC 403 the Court held:
8 All. Surendra Nath Pandey Vs. State of U.P. & Ors.
379

"In order to find out the true
character of the legislation, the court has
to ascertain the object which the provision
of law in question is to sub-serve and its
design and the context in which it is
enacted. If the object of the law is required
to be defeated by non-compliance with it, it
has to be regarded as mandatory...
Whenever the statute provides that a
particular act is to be done in a particular
manner and also lays down that the failure
to compliance with the said requirement
leads to a specific consequence, it would be
difficult to hold that the requirement is not
mandatory and the specified consequence
should not follow."

12. This above view has been
reiterated by Supreme Court in Krishna
Rai (dead) through legal representative
and others Vs. Banaras Hindu University
(2022) 8 Supreme Court Cases 713. Even
the Court referred to its earlier judgment in
Tata Chemicals Ltd. V. Commr. of
Customs (2015) 11 SCC 628 where it was
held:-

"there can be no estoppel against
law. If the law requires something to be
done in a particular manner, then it must
be done in that manner, and if it is not done
in that manner, then it would have no
existence in the eyes of the law."

13. It is a well known maxim "sublato
fundamento cadit opus" meaning, the
foundation being removed, the structure
falls. In the case of Badrinath V Govt of
Tamil Nadu and others (2000) 8 Supreme
Court Cases 395 it has been held vide
paragraph 27 thus:

"27. This flows from the general
principle applicable to "consequential
orders". Once the basis of a proceeding is
gone, may be at a later point of meantime-
like the recommendation of the State and by
the UPSC and the action taken thereon-
would fall to the ground. This principle of
consequential order which is applicable to
judicial and quasi-judicial proceedings is
equally applicable to administrative orders.
In other words, where an order is passed
by an authority and its validity is being
reconsidered by a superior authority (like
the Governor and this case) and if before
the superior authority has given its
decision, some further action has been
taken on the basis of the initial order of the
primary authority, then such further action
will fall to the ground the moment the
superior authority has set aside the
primary order."

14. Thus, lack of permission and
lawful authority will always make the very
first step defective so the entire edifice will
have no base to survive. In the case in hand
since very proceeding could not have been
initiated beyond the crushing season,
matter ought to have been put at rest.
Initiation of a proceeding beyond the scope
of
provision
and
continuation
of
proceedings for several years and that too
after retirement of a seasonal employee,
was totally an unwarrant action and so final
order of punishment is liable to be held null
and void and is so held as well.

15. The appellate authority having not
discussed all these points in the order
impugned and passed the order simply
affirming the order of the District Cane
Services Authority, the appellate authority's
order
passed
by
Commissioner
as
Chairman of the Regional Cane Service
Authority dated 30.10.2015 is held to be
equally bad and unsustainable. Thus, both
the impugned orders dated 31.1.2015
passed by the District Can Service
380 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority, Kushinagar and that of the
appellate authority namely Chairman the
Regional Cane Service Authority, Deoria
dated 30.10.2015 are hereby quashed.

16. Petitioner is held entitled to all post
retirement dues as admissible in law. Entire
dues shall be paid to the petitioner by the
competent within two months from the date of
presentation of certified copy of this order.
Since termination/ removal order has been
held to be absolutely null and void for want of
lawful authority petitioner is also held entitled
to interest at the rate of 8% from the date of
superannuation till the actual payment is made
of post retirement dues. It is also provided that
in case post retirement dues as admissible in
law are not paid within the prescribed period
as directed hereinabove, petitioner shall be
entitled to additional interest at the rate of 12%
upon the expiry of two months' period till the
actual payment is made.
----------
(2024) 8 ILRA 380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 15076 of 2021
And
Writ-A No. 16773 of 2019

State of U.P. & Anr. ...Petitioners
Versus
Birendra Bahadur Singh ...Respondent

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:

(A) Civil Law - Constitution of India,1950
-
Article
226
-
UP
Public
Service
(Tribunal) Act, 1976 - Sections 4, 4-A, 4-
(1), 4(5), 4(6), 5, 5(1)(b), 5(1)(b)(i) &
5(1)(b)(ii) - The Limitation Act, 1963 -
Section - 3, Article 173 - Writ Petition filed
by claimant - challenging the order of Tribunal
- order of punishment of year 2007 -
departmental Appeal filed in year 2008 -
Revision of year 2008 is Pending - Claimant
moved a Legal Notice in year 2014 U/s 4(6) of
the Act, 1976 - as revision was still pending
claimant filed Claim petition before Tribunal in
year 2014 - which was dismissed on the ground
of limitation - court finds that, provision of
limitation for filing a reference is contained in
Section 5(1)(b) and not in section 4(6) - Clause
(i) & (ii) of Section 5(1) (b) provide a limitation
for filing a reference in case where a final order
has been passed - no limitation has been
proscribed for a case where no final order has
been passed - Limitation will starts only on an
order being passed on appeal etc., if no orders
have been passed and such appeal etc. remain
pending , then, it cannot be said that limitation
has started - held, court cannot read into the
provision something which is not mentioned
therein by the legislation. (para - 22, 23, 24,
27)

(B) Civil Law - Constitution of India -
Article 226 - UP Public Service (Tribunal)
Act, 1976 - Sections 4, 4-A, 4-(1), 4(5),
4(6), 5, 5(1)(b), 5(1)(b)(i) & 5(1)(b)(ii) -
The Limitation Act, 1963 - Section - 3,
Article 173 - Writ Petition filed by state -
challenging the order of Tribunal - claim
petition filed in year 2015 challenging the order
of punishment of year 2006 - departmental
Appeal was filed in year 2006 - but same was
still pending as same was not forwarded to the
State Govt. at relevant time - claimant moved a
Legal Notice in year 2015 U/s 4(6) of the Act,
1976 - claimant filed Claim petition in year 2015
- Tribunal allowed the petition - State takes
plea that, claim petition was hopelessly barred
by limitation - court observed that, why should
State or its Authorities raise such objections
when they have themselves not decided the
appeal, revision etc. within a reasonable time -
held, to avoid such a situation as has arisen in
this case, the Appellate or Revisional or other
Authority as may have been empowered to take
a decision on appeal etc. prescribed in the
Service Rules should do so expeditiously and if