# The Managing Director, Pradeshik Cooperative Dairy Federation Ltd. & Ors v. Virendra Kumar Srivastava & Ors

- **Citation:** (2023) 1 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Special Appeal No. 781 of 2011
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-managing-director-pradeshik-cooperative-dairy-federation-ltd-ors-v-virendra-49157
- **Pages:** 10

## Headnote

A. Service Law - UP Cooperative Societies
Act, 1965 - UP Cooperative Societies'
Employees' Service Regulations, 1975 -
Reg. 87 - Notification dated 04.03.1972
and 17.11.1979 - Dismissal from Service -
No approval of UP Cooperative Institution
Service Board was taken by PCDF before
passing
dismissal
order
-
Effect
-
Regulation of 1975, how far applicable to
the PCDF - Held, the PCDF is no longer
under the purview of the Board as regards
recruitment,
training
and
disciplinary
control of its employees after the issue of
the Notification dated 17.11.1979 - While
the Regulations of 1975 would continue to
apply to the PCDF, Reg. 87, which
mandates prior concurrence of the Board
before
any
of
the
specified
major
penalties, in sub-clauses (e), (f) and (g) of
Clause (i) of Regulation 84 are imposed,
would not be applicable to the PCDF -
PCDF would not at all be required to
obtain the prior concurrence of the Board
before imposing any of the specified major
penalties - Held further, the learned
Single
Judge
has
misunderstood
the
eloquent
exposition
of
the
law
in
Vishwanath Gupta-III and Vishwanath
Gupta-II. (Para 25 and 27)
Special appeal allowed and Writ petition
dismissed. (E-1)
List of Cases cited:

## Text

1 All. The Managing Director, Pradeshik Cooperative Dairy Federation Ltd. & Ors. Vs.
 Virendra Kumar Srivastava & Ors.
459
the learned single Judge either in the
counter affidavit or orally, it might have
reflected in the impugned judgment and
order. The counter affidavit filed by the
opposite parties in the writ proceedings is
on record. A perusal thereof does not
reflect that any such ground was taken. Had
it been raised, the defect could have been
cured by seeking impleadment of proper
parties. Otherwise also, the purpose of
impleading a person as a party to a
proceeding is to ensure that that person gets
due opportunity to put its case in the
proceeding. In the instant case, the ViceChancellor of the University, who is the
principal officer of the University and is the
best person to put forth the case of the
University was party to the writ proceeding
and it was his decision which was
communicated to the writ petitioner.
Notably, he as well as the other officer of
the University represented the University
and a counter affidavit was also filed
putting forth the stand of the University. In
such circumstances, we do not find a good
reason to set aside the order of the learned
Single Judge on that technical ground.

12. In so far as non-impleadment of the
State
Government
and
the
ICAR
is
concerned, the writ petitioner was employed
by the University and his salary was paid by
the University. Wherefrom the University
sources its fund is not the concern of the
petitioner. In such circumstances, we do not
find any justification to set aside the order of
the learned Single Judge on that ground.

13. At this stage, Sri Siddhartha
Srivastava, who appears for the writ
petitioner (Dr. Lallu Singh), presses his
Special Appeal No. 666 of 2022 by
submitting that the learned Single Judge
should have awarded interest on the arrears
payable on account of step up in the pay
directed by the learned Single Judge.

14. We notice from the order of the
learned Single Judge that he has directed step
up in the pay of the writ petitioner with
retrospective effect i.e. from the date when
Dr. Hargyan Prakash, a junior to the writ
petitioner, was first paid higher pay than the
petitioner. From the submissions made at the
Bar, we could assess that Dr. Hargyan
Prakash was provided pay higher than what
was paid to the writ petitioner from
sometimes in the year 2007, may be from a
back date. Although it is stated that the writ
petitioner had been representing his cause
since 2011 but the representation which was
pressed was made in the year 2017. No
doubt, since then the petitioner had been
diligent in pursuing his claim but had been
lethargic in pursuing his claim earlier. We,
therefore, deny the prayer of the petitioner for
interest on the dues from the back date.

15. In light of the discussion above,
both the appeals fail and are dismissed. The
judgment and order of the learned Single
Judge is affirmed.
----------
(2023) 1 ILRA 459
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 781 of 2011

The
Managing
Director,
Pradeshik
Cooperative Dairy Federation Ltd. & Ors.
 ...Appellants
Versus
Virendra Kumar Srivastava & Ors.
 ...Respondents
460 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri G.D. Mishra

Counsel for the Respondents:
Sri S.C. Srivastava, Sri V.K. Saxena, Sri A.K.
Tripathi, Sri Arvind Kumar Tripathi, Sri
Shyamal Kumar Prayagi, Sri S.V. Srivastava

A. Service Law - UP Cooperative Societies
Act, 1965 - UP Cooperative Societies'
Employees' Service Regulations, 1975 -
Reg. 87 - Notification dated 04.03.1972
and 17.11.1979 - Dismissal from Service -
No approval of UP Cooperative Institution
Service Board was taken by PCDF before
passing
dismissal
order
-
Effect
-
Regulation of 1975, how far applicable to
the PCDF - Held, the PCDF is no longer
under the purview of the Board as regards
recruitment,
training
and
disciplinary
control of its employees after the issue of
the Notification dated 17.11.1979 - While
the Regulations of 1975 would continue to
apply to the PCDF, Reg. 87, which
mandates prior concurrence of the Board
before
any
of
the
specified
major
penalties, in sub-clauses (e), (f) and (g) of
Clause (i) of Regulation 84 are imposed,
would not be applicable to the PCDF -
PCDF would not at all be required to
obtain the prior concurrence of the Board
before imposing any of the specified major
penalties - Held further, the learned
Single
Judge
has
misunderstood
the
eloquent
exposition
of
the
law
in
Vishwanath Gupta-III and Vishwanath
Gupta-II. (Para 25 and 27)
Special appeal allowed and Writ petition
dismissed. (E-1)
List of Cases cited:

1. Special Appeal No. 992 of 1997; Pradeshik
Cooperative Dairy Federation Ltd. & anr. Vs
Vishwa
Nath
Gupta
&
ors.
decided
on
27.08.2007
2. Civil Appeal No. 7676 of 2009; M.D.,
Pradeshik Co-op. Dairy Fedn. Ltd. & anr. Vs V
ishwanath Gupta decided on 19.05.2014
3. Vishwanath Gupta Vs Pradeshik Cooperative
Dairy Federation & ors.; 1998 (80) FLR 457
(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. This is a respondents' appeal,
arising out of the judgment of the learned
Single Judge dated April 1, 2011, allowing
the writ petition and setting aside the order
of dismissal from service dated June 21,
1996 passed against the writ petitionerrespondent No. 1 to this appeal. By the
impugned judgment, the learned Single
Judge has further directed payment of 50%
back-wages. Liberty was given to the
respondents to pass a fresh order in
accordance with law.

2. Shorn of unnecessary details, the
facts are that the writ petitioner was
appointed as a Project Operator with the
Pradeshik Cooperative Dairy Federation
Limited, Lucknow (for short, ''the PCDF'),
an Apex Milk Cooperative Society, as
envisaged in Section 2(a-4) of the Uttar
Pradesh Cooperative Societies Act, 1965
(for short, ''the Act of 1965'). A Project
Operator in the employ of the PCDF holds
a Class-IV post. The writ petitioner was
charge-sheeted
on
charges
of
embezzlement and misappropriation of the
PCDF's money. After a departmental
inquiry, he was dismissed from service on
June 21, 1996 by an order passed by the
Managing Director, PCDF.

3. The writ petition was filed,
challenging the order of dismissal from
service and for consequential reliefs. After
exchange of affidavits, the writ petition was
allowed by the learned Single Judge vide
order dated April 1, 2011 on the short
ground that the order of dismissal could not
be passed by the PCDF without the
1 All. The Managing Director, Pradeshik Cooperative Dairy Federation Ltd. & Ors. Vs.
 Virendra Kumar Srivastava & Ors.
461
approval
of
the
U.P.
Cooperative
Institutional Services Board (for short, ''the
Board') under Regulation 87 of the Uttar
Pradesh Cooperative Societies' Employees'
Service Regulations, 1975 (for short, ''the
Regulations of 1975'). The respondents to
the writ petition, who are the Managing
Director and two other Officers of the
PCDF, have filed appeal against the
judgment of the learned Single Judge.

4. Heard Mr. G.D. Mishra, learned
Counsel for the PCDF and Mr. S.C.
Srivastava, learned Counsel appearing for
the writ petitioner-respondent.

5. It is submitted by Mr. G.D. Mishra,
learned Counsel for the PCDF that the
learned Single Judge has recorded a wrong
finding to the effect that in the counter
affidavit, the PCDF had taken a stand that
the Regulations of 1975 are not applicable
to them, whereas what they say in the
counter affidavit is that the Regulations of
1975 apply, except the provisions thereof
dealing with recruitment, training and
disciplinary control, which have been
excluded under the statutory Notification
dated November 17, 1979, insofar as the
PCDF is concerned. The learned Counsel
has
drawn
the
Court's
attention
to
Paragraph No. 27 of the counter affidavit at
Page No. 120 of the Paper-book. It is
argued by Mr. Mishra that the State
constituted the Board for recruitment,
training
and
disciplinary
control
of
employees
of
Apex Level
Societies,
Central or Primary Societies in the exercise
of their powers under Section 122 of the
Act of 1965 vide Notification dated March
4, 1972, as amended on February 7, 1973.
In terms of the Notification dated March 4,
1972, the Regulations of 1975 in their
entirety apply, including Regulation 87. By
a subsequent Notification dated November
17, 1979, according to the learned Counsel
for the PCDF, the Notification dated March
4, 1972 was modified and the Apex Level
Milk Society i.e. the PCDF, Central or
Primary Milk Societies, whose area of
operation extended to more than one
district or State and Cooperative Milk
Unions, including Kanpur Cooperative
Milk Board, have been excluded from the
purview of the Board.

6. It is further argued by Mr. G.D.
Mishra that the learned Single Judge has
committed an error, in taking the view that
the order dismissing the writ petitioner
from service, is bad in law, because no
prior approval of the Board was obtained as
required
by
Regulation
87
of
the
Regulations of 1975. The learned Counsel
submitted that the learned Judge has
reached the aforesaid conclusion following
the decision of a Division Bench of this
Court in Special Appeal No. 992 of 1997,
titled as ''Pradeshik Cooperative Dairy
Federation Ltd. and another vs. Vishwa
Nath Gupta and others', decided on
August 27, 2007 (for short, ''Vishwa Nath
Gupta-I'), which is clearly distinguishable
about the point on which the decision
turned and received affirmation of the
Supreme Court in Civil Appeal No. 7676
of 2009, titled as ''M.D., Pradeshik Coop. Dairy Fedn. Ltd. & anr. vs.
Vishwanath Gupta', decided on May 19,
2014 (for short, ''Vishwanath Gupta-II').

7. The learned Counsel for the writ
petitioner, on the other hand, says that the
decision of the learned Single is flawless
and submits that the decision of the
Division Bench in Vishwa Nath Gupta-I,
which it has followed to hold prior
approval by the Board mandatory, before
passing the order of dismissal from service,
has received the approval of the Supreme
462 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in Vishwanath Gupta-II. It is
submitted that the PCDF has never been
excluded
from
the
regime
of
the
Regulations of 1975, which continue to
apply to it. Therefore, the mandatory
requirement envisaged under Regulation 87
of the Regulations of 1975 obliging the
PCDF to obtain prior concurrence of the
Board before inflicting the punishment,
enumerated in Regulation 84(i)(g) of the
Regulations of 1975 continues to apply. It
is, particularly, argued by Mr. S.C.
Srivastava that a reading of the Notification
dated March 4, 1972, as amended by
Notification dated February 7, 1973 issued
under Section 122 of the Act of 1965
together with Notification dated November
17, 1979, also issued under Section 122,
does not spare a shadow of doubt that the
provisions relating to disciplinary control
under the Regulations of 1975 have not
been excluded. It is submitted that an order
of dismissal from service cannot be passed
by the PCDF against an employee of theirs
without prior concurrence of the Board
under Regulation 87. It is also emphasized
that the judgment of the learned Single
Judge is squarely supported by the
principles laid down by Division Bench of
this Court in Vishwa Nath Gupta-I.

8.

We
have
considered
the
submissions advanced by learned Counsel
appearing for the parties and perused the
record.

9. There is no issue between parties
that the PCDF is an Apex Society, as
defined under Section 2(a-4) of the Act of
1965, which is governed by the provisions
of the said Act.

10 . Sections 121 and 122 of the Act
of 1965, both of which speak about the
framing
of
service
regulations
for
employees of Cooperative Societies and
also about establishment of the Board by
the State Government for recruitment,
training
and
disciplinary
control
of
employees of Cooperative Societies or a
class of Societies, may be quoted. These
read as under:

"Section
121
-
Power
of
Registrar
to
determine
terms
of
employment of society.- (1) The Registrar
may, from time to time, frame regulation to
regulate the emoluments and other conditions
of service including the disciplinary control
of employees in a co-operative society or a
class of co-operative societies and any society
to which such terms are applicable, shall
comply with those regulations and with any
orders of the Registrar, issued to secure such
compliance.

(2) The regulations framed under
sub-section (1) shall be published in the
Gazette and take effect from the date of
such publication.

Section 122. Authority to control
employees of co-operative societies.- (1)
The State Government may constitute an
authority or authorities, in such manner as
may be prescribed, for the recruitment,
training and disciplinary control of the
employees of co-operative societies, or a
class of co-operative societies, and may
require such authority or authorities to frame
regulations
regarding
recruitment,
emoluments, terms and conditions of service
including disciplinary
control
of
such
employees and subject to the provisions
contained in Section 70, settlement of
disputes between an employee of a cooperative society and the society.

(2) The regulations framed under
sub-section (1) shall be subject to the
1 All. The Managing Director, Pradeshik Cooperative Dairy Federation Ltd. & Ors. Vs.
 Virendra Kumar Srivastava & Ors.
463
approval of the State Government and
shall, after such approval, be published in
the Gazette, and take effect from the date of
such publication and shall supersede any
regulations made under Section 121."

11. In exercise of powers under
Section 122 of the Act of 1965 read with
Rule 389-A of the U.P. Cooperative
Societies
Rules,
1968,
the
State
Government constituted the Board vide
Notification
No.
366-C/XII-C-3-36-71,
published in the U.P. Gazette, Extraordinary dated March 4, 1972, which was
amended by Notification dated February 7,
1973. The Board was constituted for the
purpose
of
recruitment,
training
and
disciplinary control of employees of Apex
Level
Societies,
Central
or
Primary
Societies, excluding Cooperative Cane
Development Unions as also the U.P.
Cooperative
Cane
Unions
Federation
Limited, Lucknow. The Apex Level
Societies, that were placed under the
purview of the Board, are those whose area
of operation extended to more than one
district or State. Also, placed under the
purview of the Board are the District or
Central
Cooperative
Banks,
District
Cooperative Federations, Cooperative Milk
Unions, including Kanpur Milk Board,
Cooperative
Cane
Sugar
Factories,
Cooperative Textile Mills and Cooperative
Housing Federation. The constitution of
Board was spelt out by the Notification
dated March 4, 1972 and the Board was
invested with power to frame regulations
regarding recruitment, emoluments, besides
terms and conditions of service, including
disciplinary control of employees, serving
Societies under the purview of the Board.
The Board in exercise of its powers, under
the Notification creating it, proceeded to
frame the Regulations of 1975. The
regulations
were
approved
by
the
Government and published in accordance
with sub-Section (2) of Section 122 of the
Act of 1965 vide Notification No. 7515
(C)/ XII-C-37-74, in the U.P. Gazette,
Extraordinary dated January 6, 1976.

12. Chapter VII of the Regulations of
1975 provides for penalties, disciplinary
proceedings
and
appeals
vis-a-vis
employees
of
Cooperative
Societies
governed by the Regulations.

13. Regulation 84 specifies the
various penalties, that may be imposed
upon an employee as also the broad
grounds, on the basis of which that may
be done. Regulation 84(i) reads as
under:

"84.
Penalties.-
(i)
Without
prejudice to the provisions contained in any
other
regulation,
an
employee
who
commits a breach of duty enjoined upon
him or has been convicted for criminal
offence or an offence under section 103 of
the Act or does anything prohibited by
these regulations shall be liable to be
punished by any one of the following
penalties: -

(a) censure,

(b) with holding of increment,

(c) fine on an employee of
Category IV (peon, chaukidar, etc.).

(d) recovery from pay or security
deposit to compensate in whole or in part
for any pecuniary loss caused to the cooperative
society
by
the
employee's
conduct,

(e) reduction in rank or grades
held substantively by the employee,
464 INDIAN LAW REPORTS ALLAHABAD SERIES

(f) removal from service, or

(g) dismissal from service"

14. Regulation 87 mandates that an
order inflicting penalties under sub-clauses
(e) to (g) of Clause (i) of Regulation 84 shall
not be made without the prior concurrence of
the Board. The Notification dated March 4,
1972, whereby Apex Level Societies, Central
or Primary, were placed under the purview of
the Board, was modified by a Notification
dated November 17, 1979 issued by the State
Government in exercise of their powers under
sub-Section (1) of Section 122 of the Act of
1965 read with Rule 389-A of the Rules
framed under the Act of 1965 vide
Notification No. 4326/XII-P-4-79-3(59)-78
dated November 17, 1979. The Notification
dated November 17, 1979 reads as under:

"IN pursuance of the provisions of
sub-section (1) of Section 122 of the Uttar
Pradesh Co-operative Societies Act, 1965
(U.P. Act no. XI of 1966), read with Rule
389-A of the U.P. Co-operative Societies
Rules, 1968 and section 21 of the U.P.
General Clauses Act, 1904 (U.P. Act no. 1,
1904) and in partial modification of
notification No. 366-C/XII-C-3-36-71 dated
March 4, 1972, the Governor is pleased to
order that the U.P. Co-operative Institutional
Service Board constituted under the said
notification shall forthwith cease to operate
regarding the recruitment, training and
disciplinary control of the employees of the
Apex Level Milk Society i.e. the Pradeshik
Cooperative Dairy Federation, Central or
Primary Milk Societies, whose area of
operation extends to more than one district or
State
and
Co-operative
Milk
Unions,
including Kanpur Co-operative Milk Board.

2. Further the Governor, is
pleased to constitute a Selection Committee
for the recruitment of category I and II
employees, as specified by the Registrar
from time to time, of the Apex Level Milk
Society i.e. the Pradeshik Co-operative
Dairy Federation, Central Milk Societies
and Co-operative Milk Unions including
Kanpur Co-operative Milk Board. The said
Selection Committee shall consist of the
following members :-

1.
An officer nominated
by
the
State
Government
-Chairman
2.
A representative of
National
Dairy
Development Board
Member

3.
Principal, Agricultural
Institute,
Naini,
Allahabad
Member
4.
One Chairman of a
Co-operative
Milk
Union or Central Milk
Society in the State
nominated
by
the
State Government
Member

5.
Managing
Director,
Pradeshik
Cooperative
Dairy
Federation
Member-
Secretary."

15. It is the writ petitioner's case that the
order of dismissal passed against him is bad
on account of prior concurrence of the Board
having not been obtained by the PCDF.

16. The learned Counsel for the
PCDF has urged that in view of the
Notification dated November 17, 1979, the
PCDF has been excluded from the purview
of the Board and their prior concurrence is
not required to impose any penalty upon
the writ petitioners.

17. We find that the learned Single
Judge has based his finding that the writ
1 All. The Managing Director, Pradeshik Cooperative Dairy Federation Ltd. & Ors. Vs.
 Virendra Kumar Srivastava & Ors.
465
petitioner's termination is in violation of
Regulation 87 of the Regulations of 1975
on account of absence of prior concurrence
of the Board, upon the judgment of the
learned Single Judge of this Court in
Vishwanath
Gupta
vs.
Pradeshik
Cooperative Dairy Federation & Ors.
1998(80)FLR 457 (for short, ''Vishwanath
Gupta-III'), that was upheld by the Division
Bench in Vishwa Nath Gupta-I.

18. In Vishwanath Gupta-III, it was
held by the learned Single Judge of this
Court:

"4.
It
appears
from
the
notification dated 17.11.1979 that only U.
P. Cooperative Institutional Service Board
was
ceased
to
operate
regarding,
recruitment,
training
and
disciplinary
control of the employees. It does not say
that 1975 Regulations shall cease to
operate. On the contrary, it is only the
Institutional Service Board which ceased to
operate,
thereby
it
means
that
the
jurisdiction which was due to be exercised
by the Institutional Service Board, can be
exercised by the authority managing such
society, whose Jurisdiction was taken away
and conferred on the Institutional Service
Board by virtue of 1975 Regulations. By
reason
of
the
said
notification,
the
jurisdiction
of
the
Committee
of
Management or controlling authority of the
society, was revived and restored within the
ambit of 1975 Regulations. The said fact
stands
clarified
by
reason
of
the
communication or letter Issued by the Milk
Commissioner dated 17th September, 1981
contained in Annexure S.A. 1 to the
supplementary affidavit filed today. Even
without clarification as observed earlier,
the said Regulations remained applicable
which was only specifically mentioned.
Therefore, it is not that by virtue of the said
order (S. A. 1), 1975 Regulation is
applicable but by virtue of the notification
dated 17.11.1979, the application of 1975
Regulation was never withdrawn. Then
again in the counter-affidavit, it has been
urged that the services of the petitioner
were
terminated
according
to
1975
Regulation on account of absconding of the
petitioner from service. During the course
of his arguments, learned counsel for the
respondent, had drawn my attention to
Regulation 85 (ii) (b) of 1975 Regulations
that services of an employee can be
terminated without holding any disciplinary
proceeding if he had absconded within the
mantling of clause (b) aforesaid. Therefore,
preliminary objection cannot be accepted
and is accordingly overruled."

19. The Division Bench in Vishwa
Nath Gupta-I upheld the learned Single
Judge's opinion on the point, observing:

"In view of the aforesaid settled
legal position it has to be examined in the
facts of the present case as to whether the
issuance
of
the
notification
dated
17.11.1979 whereby the Pradeshik Cooperative Dairy Federation has been
withdrawn from the purview of the U.P.
CO-operative Institutional Services Board
would have effect of making the provisions
of U.P. Co-operative Societies Employees
Services Regulation, 1975, inapplicable to
the employees of the Society. This Court
may record that the Hon'ble Single Judge
has specifically held that notification dated
17.11.1979
only
provided
that
the
Institutional Board shall have no control
qua recruitment training and disciplinary
control of the employees of Pradeshik Cooperative
Dairy
Federation.
The
notification
does
not
provide
that
Regulation of 1975 would cease to apply.
The aforesaid aspect of the matter stands
466 INDIAN LAW REPORTS ALLAHABAD SERIES
clarified by reason of the communication of
the Milk Commissioner who is also the
Registrar
of
the
Milk
Co-operative
Societies dated 17.9.1981 which provided
that the statutory Regulations of 1975
would continue to be applicable to the
employees of Pradeshik Cooperative Dairy
Federation.

The Hon'ble Single Judge has
rightly held that at no point of time the
applicability of Regulation 1975 was
withdrawn qua the employees of Pradeshik
Co-operative Dairy Federation Ltd. Once it
has
been
found
that
the
statutory
Regulations of 1975 were applicable, it
would be seen that the impugned order of
termination is in teeth of Regulation 85 (II)
(b) of the U.P. Co-operative Societies
Employees Services Regulation, 1975. This
Court, therefore, hold that the judgment of
the Hon'ble Single Judge allowing the writ
petition is in accordance with law."

20. Upon Appeal by Special Leave,
the Supreme Court in Vishwanath GuptaII upheld the learned Single Judge's
opinion, as affirmed by the Division Bench
and observed:

"The facts are not in dispute. The
question that emerges for consideration is
whether the interpretation placed by the
High Court of Regulation 85 (ii) (b) is
correct and whether the High Court has
oppositely opined that the terms and
conditions enshrined in the said Regulation
had not been complied to attract its
applicability.
To
appreciate
the
controversy, it is necessary to reproduce the
said Regulation:

"85. Disciplinary proceedings: (1)
the disciplinary proceedings against an
employee shall be conducted by the Inquiring
Officer (referred to in clause (iv) below with
the due observance of the principles of
natural justice for which it shall be
necessary:-

(ii (a) Where an employee is
dismissed or removed from service on the
ground of conduct which was led to his
conviction on a criminal charge; or

(b) Where the employee has
absconded and his whereabouts are not
known to the society for more than three
months; or

(c) Where the employee refused or
fails without sufficient cause to appear before
the Inquiry Officer when specifically called
upon in writing to appear; or

(d) Where it is otherwise (for
reasons to be recorded) not possible to
communicate with him, the competent
authority may award appropriate punishment
without taking or continuing disciplinary
proceedings disciplinary proceedings."

On a bare reading of the said
Regulation, it is quite vivid that to attract the
said Clause, two conditions precedent,
namely, absconsion of the employee and,
second, the employer i.e. the Society should
be in a position to form an opinion that
whereabouts of the employee are not known
to the employer for more than three months.
The High Court has found that the second
condition was not satisfied. The reasoning
given by the High Court reads as follows:

x x x x x

We find that the reasons assigned
by the High Court on the backdrop of the
facts are absolutely sound. The conditions
precedent were not satisfied and hence, the
1 All. The Managing Director, Pradeshik Cooperative Dairy Federation Ltd. & Ors. Vs.
 Virendra Kumar Srivastava & Ors.
467
employer without holding an enquiry could
not have terminated the services of the
respondent. Be it noted, it is an exceptional
clause and, therefore,
the conditions
precedent are to be strictly construed."

21. A careful reading of the judgment
of the learned Single Judge in Vshwanath
Gupta-III shows that the decision in that
case did not turn on the issue of prior
concurrence by the Board to the penalty
imposed, but upon the point that the
conditions precedent to the exercise of
powers under Regulation 85 (ii) (b) were
not fulfilled.

22. No doubt, an issue was raised in
Vishwanath Gupta-III that a writ petition to
challenge the termination of services of an
employee
of
the
PCDF
was
not
maintainable, because it was not ''State' and
by
virtue
of
the Notification dated
November 17, 1979, the PCDF was no
longer under the purview of the Board, but
this Court did not accept the PCDF's
contention regarding the maintainability of
a writ petition against them by an employee
questioning the imposition of a penalty. It
was opined that it is only the Board, whose
jurisdiction
has
ceased
under
the
Regulations of 1975 and can now be
exercised by the Authority managing the
concerned Society, which was earlier taken
away and conferred on the Board by virtue
of the Regulations of 1975. It was also held
that the Notification dated November 17,
1979 has not placed the PCDF beyond the
purview of the Regulations of 1975. The
other provisions of the Regulations of
1975, including those in Chapter VII were,
therefore, held, in the opinion of this Court,
to be applicable to the PCDF.

23. The logical corollary of the
holding in Vishwanath Gupta-III is that
after issue of the Notification dated
November 17, 1979, prior concurrence of
the Board before one or the other specified
major penalties were imposed on an
employee of the PCDF was no longer
necessary. But, that was not the ratio
decidendi. The Division Bench in Special
Appeal No. 992 of 1997 also upheld the
learned Single Judge not on the point that
prior concurrence of the Board was
necessary before termination of services of
an employee of the PCDF, but that the
Regulations of 1975 continue to be
applicable notwithstanding withdrawal of
jurisdiction of the Board vide Notification
dated November 17, 1979. And, therefore,
the termination before the Court in that
case was in teeth of Regulation 85(ii)(b) of
the Regulations of 1975.

24. The holding of their Lordships of
the Supreme Court in Vishwanath Gupta-II
upholding both the learned Single Judge
and the Division Bench also is to the effect
that the termination of the employee in the
cause before the Court was in violation of
Regulation 85(ii)(b) of the Regulations of
1975,
which
continue
to
apply
notwithstanding the Notification dated
November 17, 1979.

25. In our opinion, therefore, the
learned Single Judge was not right in
holding that the Division Bench in Vishwa
Nath Gupta-I having opined that the
Regulations of 1975 were applicable to the
PCDF, prior concurrence of the Board had
to be obtained by the PCDF before passing
the impugned order of dismissal. In our
opinion, the learned Single Judge has
misunderstood the eloquent exposition of
the law in Vishwanath Gupta-III and
Vishwanath Gupta-II, that is, both in the
judgment of the learned Single Judge and
the Division Bench there, which clearly lay
468 INDIAN LAW REPORTS ALLAHABAD SERIES
down that in view of the Notification dated
November 17, 1979, the Regulations of
1975 have not been withdrawn and
continue to regulate the service conditions
of employees of the PCDF, but the control
and the jurisdiction of the Board no longer
extends to the PCDF. It is this removal of
the jurisdiction of the Board under the
Regulations vis-a-vis the PCDF by the
Notification

26. The learned Single Judge has
proceeded to opine on the premise that
since the Regulations of 1975 have been
held to apply to the PCDF by the learned
Single Judge in Vishwanath Gupta-III
and the Division Bench in Vishwanath
Gupta-I, the impugned order of dismissal
without compliance with Regulation 87,
that is to say, without obtaining prior
concurrence of the Board is bad. We are
afraid that this is not at all so.

27. Upon a careful reading of the
Notification dated March 4, 1972 and the
subsequent Notification dated November
17, 1979, we are of opinion that it is not
that the Regulations of 1975 have ceased to
apply to the PCDF, but it is indubitable that
the PCDF is no longer under the purview of
the Board as regards recruitment, training
and disciplinary control of its employees
after the issue of the Notification dated
November 17, 1979. Therefore, in our
considered opinion, while the Regulations
of 1975 would continue to apply to the
PCDF, Regulation 87, which mandates
prior concurrence of the Board before any
of the specified major penalties, in subclauses (e), (f) and (g) of Clause (i) of
Regulation 84 are imposed, would not be
applicable to the PCDF. The PCDF would
not at all be required to obtain the prior
concurrence of the Board before imposing
any of the specified major penalties.

28. No other point has been argued
before us to support the judgment of the
learned Single Judge.

29. In our opinion, therefore, the
impugned order passed by the learned
Single Judge cannot be sustained.

30. This Special Appeal is allowed,
the impugned judgment and order passed
by the learned Single Judge is set aside and
the writ petition dismissed.
----------
(2023) 1 ILRA 468
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ-A No. 2830 of 2020

Rampyari @ Budhrani ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Jitendra Kumar Mishra, Sri Ram Naresh
Singh, Sri Sarvesh Singh, Sri Shiv Datta
Yadav

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
appointment - Live in partner's right -
Petitioner was married to someone else -
Though the marriage was not dissolved,
she claimed herself to be wife of deceased
- Claim of compassionate appointment,
how far considerable - Held, a legally
wedded wife of one person may never be
heard
to
claim
compassionate
appointment against death of her live in
partner,
during
subsistence
of
her
marriage - Citizens may exercise their
free choice in these matters i.e. to live