# U.P. Scheduled Caste Finance & Development Corporation Ltd v. Surendra Pal Singh & Anr

- **Citation:** (2020) 1 ILRA 1763
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Service Bench No. 6221 of 2019
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-scheduled-caste-finance-development-corporation-ltd-v-surendra-pal-singh-anr-45057
- **Pages:** 17

## Headnote

C.S.C.,
Pawan
Kumar
Singh,
Sanjai
Srivastava

A. Service - Disciplinary Enquiry - Model
Conduct, Disciplinary and Appeal Rules
for Public Undertakings: Rules 33 to 35;
Principles of Natural Justice - Regular
enquiry
has
to
be
conducted
and
principles of natural justice have to be
followed in the disciplinary proceedings
by the enquiry officer, which includes an
opportunity to the employee to produce his
witnesses, examine witnesses of department
and an opportunity of being heard. The
1 All. U.P. Scheduled Caste Finance & Development Corporation Ltd. Vs. Surendra Pal Singh & Ors. 1765
punishment order should be reasoned and
speaking and must be passed after considering
entire material of record. (Para 49, 51 & 53)
It is settled principle that where the procedure
for major penalty is initiated then even if
disciplinary authority awards minor punishment
the enquiry should be completed by adopting
the procedure prescribed for major penalty.
(Para 52 & 54)

Writ Petition dismissed. (E-4)

Precedent followed: -

## Text

_Characters 0–39,935 of 56,694. This is a partial read: ask again with offset=39935 for what follows._

1764 INDIAN LAW REPORTS ALLAHABAD SERIES
09.01.2018 clearly specified the eligibility
marks for the Recruitment, 2018.

70. As regards the argument on
behalf of the petitioners that no valid
reasons are forthcoming in the order dated
20.02.2019
to
make
redundant
the
Government Order dated 21.05.2018,
suffice to state that the order dated
20.02.2019 clearly spells out the reasons
as to why the Government Order dated
21.05.2018 is being withdrawn. The Court
finds the said reasons to be satisfactory
and even otherwise once this Court has
itself gone in painstaking details of the
facts of the case and even if for the sake of
argument it could be said that one or the
other reason indicated in the impugned
order dated 20.02.2019 is not satisfactory
or valid even then considering the ''Useless
Formality Theory' enunciated by the Apex
Court in the case of M.C. Mehtra (supra)
as well as Canara Bank (supra), there is
no occasion for this Court to interfere with
the impugned order dated 20.02.2019
taking into consideration the detailed
reasons already set forth above.

71. Another argument on behalf of
the petitioners that in terms of 22nd
amendment in the Rules, 1981, the
academic qualification as introduced in
Rule 8 by 20th amendment of passing the
Assistant
Teacher
Recruitment
Examination was done away with and
considering the judgment of the Apex
Court in the case of Anand Kumar
Yadav (supra) for adjustment of Shiksha
Mitras by giving them suitable age
relaxation
and
weight-age,
the
Government
order
dated
21.05.2018
reducing the eligibility marks was validly
issued. Suffice to state that it is settled
proposition of law that where a selection
process starts on the basis of existing rules
and an advertisement has been issued on
the basis thereof, it is those rules which
will govern the selection notwithstanding
the amendment in the rules (See-Mohd.
Raisul Islam and others Vs. Gokul
Mohan Hazarika and others (2010) 7
Supreme Court Cases 560). Hence, the
said argument is also rejected.

72.

Accordingly,
taking
into
consideration the aforesaid discussion, no
case for interference is made out. All the
writ petitions are dismissed.
----------
(2020)1ILR 1763

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 6221 of 2019

U.P. Scheduled Caste Finance & Development
Corporation Ltd. ...Petitioner
Versus
Surendra Pal Singh & Anr. ...Respondents

Counsel for the Petitioner:
Prakash Kumar Sinha, Akash Sinha

Counsel for the Respondents:
C.S.C.,
Pawan
Kumar
Singh,
Sanjai
Srivastava

A. Service - Disciplinary Enquiry - Model
Conduct, Disciplinary and Appeal Rules
for Public Undertakings: Rules 33 to 35;
Principles of Natural Justice - Regular
enquiry
has
to
be
conducted
and
principles of natural justice have to be
followed in the disciplinary proceedings
by the enquiry officer, which includes an
opportunity to the employee to produce his
witnesses, examine witnesses of department
and an opportunity of being heard. The
1 All. U.P. Scheduled Caste Finance & Development Corporation Ltd. Vs. Surendra Pal Singh & Ors. 1765
punishment order should be reasoned and
speaking and must be passed after considering
entire material of record. (Para 49, 51 & 53)
It is settled principle that where the procedure
for major penalty is initiated then even if
disciplinary authority awards minor punishment
the enquiry should be completed by adopting
the procedure prescribed for major penalty.
(Para 52 & 54)

Writ Petition dismissed. (E-4)

Precedent followed: -

1. State of U.P. Vs. Deepak Kumar, 2019(1)
AWC 26 (LB) (Para 51 & 54)

Precedent distinguished: -

1. D.H.B.V.N.L. Vidyut Nagar, Hisar Vs. Yashvir
Singh Gulia, (2013) 11 SCC 173 (Para 29 & 55)

Present petition challenges validity of
order dated 24.09.2018, passed by U.P.
State Public Services Tribunal.

(Delivered by Hon'ble Saurabh Lavania,J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. The present writ petition has been
filed challenging the validity of the judgment
and order dated 24.09.2018 passed by opposite
party no.2/U.P. State Public Services Tribunal
(in short "Tribunal") in Claim Petition
No.1696 of 2016 filed by the Claimantopposite party no.1, whereby the opposite
party no.2 set aside the punishment order dated
05.12.2014 passed by the Managing Director
of the petitioner corporation and the appellate
order dated 20.06.2016, whereby the appeal of
the opposite party no.1 was rejected by the
appellate/competent authority.

3. Vide impugned order dated
24.09.2018, the opposite party no.2 has
issued direction for payment of entire
salary,
allowances
and
consequential
benefits in accordance with law from the
date of dismissal i.e. 19.09.2000 to
07.01.2010, the date passing of the order
07.01.2010 in Writ Petition No.1582 of
2003, with a further direction to pay back
the realized amount to the opposite party
no.1 within, 3 months.

4. Vide order dated 05.12.2014 the
opposite party no.1 was denied wages
w.e.f. 19.09.2000 to 07.01.2010 on the
principle of 'No Work, No Pay' and also
issued
a
direction
for
recovery
of
Rs.59,800.00 i.e. half of the amount of
Rs.1,19,600/- along with NSC interest as
was payable on 01.04.1999.

5. Facts of the case, in brief, are that
the opposite party no.1 was posted as
Assistant
Manager
at
Allahabad
in
petitioner corporation and for committing
financial irregularities, he was served with
charge sheet dated 25.08.1999. After
serving of the charge sheet, the opposite
party no.1 was suspended vide order dated
24.12.1999 and Sri D. Lal, Chief Finance
& Accounts Officer was appointed as
enquiry officer to conduct the enquiry
against the opposite party no.1 with regard
to charges, as mentioned in detail in the
charge sheet dated 25.08.1999.

6. The enquiry officer conducted the
enquiry and submitted its enquiry report
on 11.05.2000. The enquiry officer held
that the opposite party no.1 guilty of
Charge Nos.1, 2, 3, 4, 5 & 6 of the charge
sheet dated 25.08.1999 and charge nos. 7
and 8 were found not proved.

7. On 26.07.2000, the disciplinary
authority issued show cause notice to the
opposite party no.1 and in response to the
1766 INDIAN LAW REPORTS ALLAHABAD SERIES
same the opposite party no.1 submitted his
written representation dated 24.08.2000.

8. The Managing Director of the
petitioner corporation after considering the
reply of the opposite party no.1 to the
show cause notice, enquiry report as well
as other material, passed the punishment
order dated 19.09.2000.

9. Vide punishment order dated
19.09.2000 the opposite party no.1 was
dismissed from the service of petitioner
corporation with further punishment of
recovery of Rs. 2,54,100.00/- along with
interest @ NSC interest.

10. Against the punishment order
dated 19.09.2000, the opposite party no.1
filed an Appeal, which was dismissed by
the Appellate Authority on 02.01.2003.
The
order
dated
02.01.2003
was
communicated to the petitioner vide letter
dated 14.01.2003.

11. Feeling aggrieved by the
punishment order dated 19.09.2000 and
the appellate order dated 02.01.2003, as
communicated
vide
letter
dated
14.01.2003, the opposite party no.1 filed
the Writ Petition No.1582 (S/S) of 2003.
The main reliefs claimed in Writ Petition
No.1582 of 2003 by the opposite party
no.1 are being quoted hereinunder:-

"Issue a writ, order or direction
in the nature of certiorari quashing the
impugned judgment and order dated
24.09.2018 passed by O.P. No.2 in Claim
Petition No. 1696 of 2016 as contained in
Annexure No.1 to this writ petition.

Issue a writ, order or direction
in the nature of mandamus restraining the
respondents from implementing , executing
and operating the impugned, executing
and operating the impugned judgment and
order dated 24.09.2018 passed by O.P.
No.2 in Claim Petition No.1696 of 2016 as
contained in Annexure No.1 to this writ
petition. "

12. After exchange of pleadings, the
Writ Petition No.1582 of 2003 filed by the
Opposite Party No.1 was heard and
allowed vide judgment and order dated
07.01.2010.
Dismissal
order
dated
19.09.2000 and the Appellate order dated
02.01.2003 passed against the opposite
party no.1 by the Managing Director and
the Appellate Authority respectively, were
quashed. This Court in judgment dated
07.01.2010 also provided that opposite
party No.1 will be entitled for all
consequential benefits. Further, this Court
provided that it will be open to the
respondents to proceed with enquiry
against the petitioner in accordance with
law.

13. Feeling aggrieved by the
aforesaid judgment and order dated
07.1.2010, petitioner corporation filed the
Special Appeal No.86 of 2010. The said
Special Appeal was heard and partly
allowed vide judgment and order dated
05.04.2010. The corporation was directed
to reinstate the Opposite Party No.1 in
services forthwith and pay salary from the
date of passing of the judgment and order
dated 07.01.2010 in Writ Petition No.1582
of 2003. The judgment dated 05.04.2010
passed in Special Appeal No.86 of 2010
also provides that arrears of salary from
the date of passing of the order of
dismissal
till
reinstatement
of
the
respondent will be paid subject to the final
outcome of the enquiry.

14. In compliance of the order dated
05.04.2010 passed in Special Appeal
1 All. U.P. Scheduled Caste Finance & Development Corporation Ltd. Vs. Surendra Pal Singh & Ors. 1767
No.86 of 2010 as mentioned hereinabove,
the opposite party no.1 was reinstated vide
order dated 27.07.2010 and he joined the
services and by the same order, petitioner
corporation appointed Sri Rakesh Kumar
Verma, Chief Finance Accounts Officer as
enquiry officer for inquiring the charges,
as mentioned in the charge sheet dated
25.08.1999, in accordance with the rules
provided by the Rules of the Corporation
regarding disciplinary enquiry.

15. The enquiry officer submitted its
report after holding the enquiry and found
charges nos.1, 2 & 4 of the charge sheet
dated 25.08.1999 as proved and charges
nos. 3,5,6,7 and 8 were held to be not
proved.

16. Vide letter dated 15.11.2011,
opposite party no.1 was required to submit
his written reply regarding the findings of
the enquiry report up to 18.11.2011 and
appear personally on 22.11.2011 for
explaining and defending the allegations
of the proved charges of the enquiry
report. The opposite party no.1 sought 15
days
time
for
filing
his
reply
in
compliance of the letter dated 15.11.2011
vide his letter dated 18.11.2011 and 15
days time was granted by the Managing
Director of the petitioner corporation vide
letter dated 24.11.2011. The opposite party
no.1 failed to submit any reply to the letter
dated 15.11.2011 up to 24.11.2011.
However, opposite party no.1 submitted a
reply enquiry report vide letter dated
18.12.2011.

17. Further vide letter dated
18.01.2012,
the
Managing
Director
required the opposite party no.1 to appear
in person on 24.01.2012 for personal
hearing. As the Managing Director was
too much busy in other matter, the
opposite party no.1 was required vide
written letter to appear before him for
hearing on 31.01.2012. The opposite party
no.1 appeared before Managing Director
on 31.01.2012 who heard the opposite
party no.1.

18. Again on 28.08.2014, the
Managing Director issued Show Cause
Notice to the opposite party no.1. The
Opposite party no1 did not appear before
the Managing Director in pursuance of the
Show Cause Notice dated 28.08.2014
rather he submitted a detailed written reply
dated 01.10.2014.

19. After considering the written
reply of the opposite party no.1 the
Managing Directer, on 05.12.2014 passed
the punishment order and denied the claim
of the opposite party no.1 for pay w.e.f.
19.09.2000 to 07.01.2010 on the basis of
'No Work, No Pay' and imposed liability
for recovery of Rs. 59,800/- i.e. half of the
amount of Rs. 1,19,600/- along with NSC
interest on 01.04.1999 to be recovered
opposite party no.1.

20. Feeling aggrieved by the
punishment
order
dated
05.12.2014,
whereby the opposite party no.1 was
denied his claim for pay w.e.f. 19.09.2000
to 07.01.2010 on the basis of principle of
'No Work, No Pay' and directed for
recovery of Rs.59,800/- i.e. half of the
amount of Rs.1,19,600/- along with NSC
interest as on 01.04.1999 from him, the
opposite party no.1 preferred appeal before
the Appellate Authority on 02.03.2015.
The Appellate Authority, on 20.06.2016
rejected the appeal of Opposite party no.1.

21. Feeling aggrieved by the
punishment order dated 05.12.2014 and
the Appellate Order dated 20.06.2016
1768 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the Appellate Authority, the
Opposite party no.1 filed the Claim
Petition before the opposite party no.2.

22. The petitioner-corporation filed
its written statement controverting the
contents of the Claim Petition of opposite
party no.1 on 07.02.2017.

23. The opposite party no.1 before
the Tribunal filed the rejoinder affidavit
reiterating the earlier plea taken by him in
the claim petition.

24. After exchange of pleadings, the
Tribunal heard the matter and allowed the
Claim Petition vide impugned judgment
and order dated 24.09.2018.

25. Challenging the judgment and
order
dated
24.09.2018
passed
by
Tribunal, the present writ petition has been
filed.

26. Assailing the impugned order
dated 24.09.2018 the learned counsel for
the petitioner Sri P.K. Sinha submitted that
the Tribunal has considered the case of
opposite party no.1 in arbitrary and
mechanical manner and interfered in the
order before it without considering the
facts that the minor punishment as
provided under Rule 33 was imposed on
the opposite party no.1, as such the regular
enquiry was not required and accordingly
the principle settled by this Court as well
as by the Hon'ble Apex Court with regard
to holding the regular enquiry by fixing
date, time and place for proving the
charges as well as documents relied upon
in the enqiury proceeding would not apply
and the Tribunal ignore this aspect of the
case and after applying principle of
holding regular enqiury interfered in the
matter in issue.

27. Sri P.K.Sinha, learned counsel
for the petitioner submitted that the charge
sheet was given for imposing major
punishment, but ultimately the minor
punishment provided under Rule 33 of the
Rules was given and as such the principles
which have considered by the Tribunal,
ought not to have been considered by the
Tribunal in the instant case.

28. Sri P.K.Sinha, learned counsel
for the petitioner while assailing the
impugned judgment dated 24.09.2018
passed by the Tribunal mainly pressed the
ground related to the enquiry procedure.

29. In support of his arguments Sri
P.K. Sinha, learned counsel for the
petitioner, placed the reliance on the
judgment
passed
in
the
case
of
D.H.B.V.N.L. Vidyut Nagar, Hisar Vs.
Yashvir Singh Gulia reported in (2013)
11 SCC 173. Prayer is to allow the writ
petition.

30. Per contra, learned counsel for
the opposite party no.1, Sri Sanjay
Srivastava, vehementaly argued that the
charge
sheet
dated
25.08.1999
for
awarding major punishment was issued to
the opposite party no.1 and thereafter he
was
dismissed
on
19.09.2000
and
thereafter the appeal filed against the order
dated 19.09.2000 was also dismissed vide
order dated 14.01.2003 passed by the
appellate authority and both the orders
were challenged before this Court in the
Writ Petition No.1582 of 2003, which was
allowed on 07.01.2010 the grounds to the
effect that the orders were passed in
violation of principles of natural justice
and were non-speaking and therefore in
the judgment dated 05.04.2010 passed by
Division Bench of this Court in Special
Appeal no.86 of 2010 the judgment passed
1 All. U.P. Scheduled Caste Finance & Development Corporation Ltd. Vs. Surendra Pal Singh & Ors. 1769
by the Single Judge of this Court was
interfered only with regard to payment of
back wages.

31. Further submitted that from the
admitted facts of the case it is crystal clear
that the proceedings vide charge sheet
dated
25.08.1999
were
initiated
for
awarding the major punishment and the
major punishment can only be awarded as
per the procedure prescribed for awarding
major penalties under the Rule 35 of the
Rules and as well as keeping in view the
settled legal proposition on the issue of
holding regular departmental enquiry and
if the enquiry is conducted in violation of
the same, it is liable to be interfered.

32. Further submitted that after
holding regular enquiry, the competent
authority for imposing the punishment can
impose a minor punishment though the
proceedings were initiated for awarding
the major punishment but if the process
has been initiated for holding the enquiry
for awarding major punishment then it has
to be followed as per the settled principles
as well as the Rules 35 of the Rules
applicable in the corporation and without
following the procedure prescribed for
holding the regular enquiry, if minor
punishment is awarded then in that
circumstances it is liable to be interfered,
on the ground of not holding proper
enquiry as per Rules.

33. It is stated that keeping in view
the facts of the case as well as settled
proposition of law with regard to issues
involved in the present case the writ
petition is liable to be dismissed.

34. We have heard the learned
counsel for the parties and perused the
record.

35.

The
Claim
Petition
for
challenging the order dated 05.12.2014
and appellate order dated 20.06.2016 was
preferred on the grounds to the effect that
the inquiry officer did not conduct the
enquiry, as per the settled principles for
holding
regular
enquiry
and
Rules
applicable
in
the
corporation
for
conducting the regular enquiry. In the
inquiry proceedings no date, time and
place was fixed by the enquiry officer for
holding the regular enquiry nor any
witness was examined for proving the
charges. Imposing punishment of recovery
of Rs.2,59,800/- is in violation of Article
14 of the Constitution of India as the
District Manager was the competent
authority with regard to disbursement of
loan and the petitioner in fact was not the
sanctioning authority of loan nor he was
responsible in any manner as, he was
entitled only for disbursement of loan. As
per the judgment passed in Special Appeal
No.86 of 2010 dated 05.04.2010, the
period from the date of dismissal shall not
be treated as break in service and shall be
counted for the purpose of service
benefits. Applying the principle of 'No
Work, No Pay' in whimsical manner
cannot be imposed upon employee. In the
present case, the same is without following
the proper procedure. Earlier dismissal
order was quashed vide order judgment
and order dated 19.09.2000 on account of
illegal order. In the facts of the case, the
principle of 'No Work, No Pay' will not be
applicable.

36. It appears from para nos.12, 19,
21, and 22 that in the said paragraphs of
the written Statement/Counter affidavit
filed before the Tribunal, the petitioner
Corporation has not specifically stated that
the enquiry officer conducted the enquiry
as per the Rules applicable in the
1770 INDIAN LAW REPORTS ALLAHABAD SERIES
corporation and during the enquiry, the
date, time and place was fixed for
recording oral evidence in relation to
proving of charges as well as documents
relied upon for proving the charges against
the opposite party no.1.

37. Admittedly, after passing the
order dated 05.04.2010 in the Special
Appeal No.86 of 2010 on the same charges
i.e. charge sheet dated 25.08.1999 the
enquiry was conducted by the enquiry
officer, as mentioned in para 15 of the writ
petition and thereafter the enquiry officer
submitted
the
enquiry
report
dated
18.10.2011. The show cause notice was
issued, to which opposite party no.1
submitted his reply dated 18.12.2011 and
after considering the reply of the petitioner
the non-speaking order of punishment
dated 05.12.2014 was passed. After the
order of punishment dated 05.12.2010,
opposite party no.1 file the appeal, which
was also dismissed vide order dated
20.06.2016.

38. After exchange of pleadings, the
Tribunal heard the matter and allowed the
Claim Petition vide impugned judgment
and order dated 24.09.2018. The relevant
portion of the impugned judgment and
order dated 24.09.2018 is quoted below for
ready reference.

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1 All. U.P. Scheduled Caste Finance & Development Corporation Ltd. Vs. Surendra Pal Singh & Ors. 1771
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us Hkh dsoy tkap vk[;k dks lgh ekurs gq,
;kph ds fo:) vkyksP; vkns'k ikfjr fd;k gS
tks esjs fopkj ls rdZlaxr o eq[kfjr o ldkj.k
vkns'k ugha gSA eq[kfjr o ldkj.k vkns'k ds
laca/k esa ekuuh; mPpre U;k;ky; }kjk
jktdqekj esgjks=k cuke fcgkj ljdkj o vU;
2006 lqizhe dksVZ dslst] ,y0,.M0,l0] 679 esa
ikfjr fu.kZ; esa nh xbZ O;oLFkk mYys[kuh; gS
ftlesa fuEufyf[kr fl)kUr izfrikfnr fd;k gS%&

"Without going into other issues
raised, we are of the view that the
impugned
order
of
the
respondent
authority imposing punishment on the
appellant can not be sustained. Even if we
are assume that Rule 55-A which pertains
to minor punishment was applicable and
not Rule 55 which relates to major
punishments
nevertheless
Rule
55-A
requires that the punishment prescribed
therein
can
not
be
passed
unless
representation made pursuant to the showcause
notice,
has
been
taken
into
consideration before the order is passed.
There is nothing in the impugned order
which shows that any of the several issues
raised by the appellant in his answer to the
show-cause
notice
where,
in
fact,
considered. No reasons has been given by
the respondent authority for holding that
the charges were proved except for the
ipse dixit of the disciplinary authority. The
order, therefore, can not be sustained and
must be and is set aside.""

bl mijksDr foopsuk ds vk/kkj ij
;g Li"V gS fd iz'uxr vkns'k eq [kfjr o
rdZlaxr vkns'k ugha gS rFkk ek0 mPp U;k;ky;
}kjk iwoZ tkap ds laca/k esa foosfpr dh xbZ =qfV;ksa
dks nwj ugha fd;k x;k cfYd fcuk fdlh fu;e
dk ikyu djrs gq, tkap vf/kdkjh us tkap
vk[;k izLrqr dh tks fujLr gksus ;ksX; gSA ;kph
pwafd lsok fuo`Rr gks x;k gS blfy, iqu% fdlh
tkap dh vko';drk izrhr ugha gksrh A bl rjg
;kph ds fo:) jktdh; {kfr gsrq tks olwyh
vkns'k ikfjr fd;k x;k gS og fujLr gksus ;ksX;
gSA"

iz'uxr vkns'k esa ;kph dks fMlfely
vkns'k fnukad 19-09-2000 ls ek0 U;k;ky; }kjk
ikfjr vkns'k fnukad 07-01-2010 rd ds osru
,oa HkRrs vkjksiksa esa nks"kh ik;s tkus ij Þuks odZ
uks isß ds izfrikfnr fl)kar ds vk/kkj ij ns; u
gksus dk Hkh vkns'k ikfjr fd;k x;k gSA bl
lEcU/k esa ;g mYys[kuh; gS fd ;kph ds
c[kkZLrxh vkns'k dks ekuuh; mPp U;k;ky;
}kjk fu.kZ;@vkns'k fnukafdr 07-01-2010 }kjk
fujLr djrs gq, mls leLr ikfj.kkfed lsok
ykHk iznku djus dk vkns'k ikfjr fd;kA
ekuuh; mPp U;k;ky; ds mDr fu.kZ; fnukafdr
07-01-2010 ds fo:) 'kklu }kjk vihy nkf[ky
dh x;h ftls ekuuh; U;k;ky; }kjk vkns'k
fnukafdr 05-04-2010 }kjk fuLrkfjr fd;k x;k
ftlesa ;kph dks lsok esa rRdky iquZLFkkfir djus
rFkk mls fu.kZ; fnukafdr 07-01-2010 ls osru
fn;s tkus dk vkns'k fn;k x;kA ekuuh; mPp
U;k;ky; us ;g Hkh vkns'k fn;k fd ;kph ds
lsok ls c[kkZLr fd;s tkus rFkk mls iquZLFkkfir
fd;s tkus ds chp dh vof/k dk osru mlds
fOk:) tkap ds vk/kkj ij fuf.kZr gksxkA mijksDr
foospu ls Li"V dks pqdk gS fd ;kph ds fo:)
dh x;h tkap dh dk;Zokgh izkd`frd U;k; ds
fl)karksa ds foijhr gksus ,oa mRrj izns'k ljdkjh
lsod 1⁄4vuq'kklu ,oa vihy1⁄2 fu;ekoyh] 1999 ds
fu;e&7 ds izkfo/kkuksa ds vuqlkj u gksus ds
dkj.k iw.kZr% =qfViw.kZ gSA lkFk gh dsoy bl
vk/kkj ij fd ;kph dks tkap dk;Zokgh esa nks"kh
ik;k x;k gS foIk{khx.k us Þuks odZ uks isß ds
izfrikfnr fl)kar ds vk/kkj ij mls c[kkZLrxh
vkns'k fnukad 19-09-2000 ls ek0 U;k;ky; }kjk
ikfjr vkns'k fnukad 07-01-2010 rd ds osru
,oa HkRrs u fn;s tkus dk vkns'k ikfjr fd;k gS
tcfd ekuuh; mPp U;k;ky; ds }kjk ikfjr
vkns'k fnukafdr 05-04-2010 ds vk/kkj ij ;kph
dh bl vof/k dh lsok esa fujUrjrk leLr lsok
ykHk ds fy;s ekuh tk;sxhA tgka rd bl vof/k
ds osru HkRrs dk lEcU/k gS pwafd ;kph yxk;s
x;s vkjksi ds vUrXkZr nks"kh ugha gS ,oa ;kph dh
lsok esa fujUrjrk leLr lsok ykHk ds fy;s ekuh
tk;sxh blfy, Þuks odZ uks isß fl)kar orZeku
ekeys esa fof/k lEer ugha gSA vr% esjs fopkj ls
1772 INDIAN LAW REPORTS ALLAHABAD SERIES
;kph fMlfely vkns'k fnukad 19-09-2000 ls
ek0 U;k;ky; }kjk ikfjr vkns'k fnukad 07-012010 rd ds osru ,oa HkRrs ikus dk vf/kdkjh
gSA bl lEcU/k esa ekuuh; mPpre U;k;ky;
}kjk State of Kerala and Others vs.
E.K.Bhaskaran Pillai (2007)6 Supreme Court
Cases 524 esa nh x;h O;oLFkk mYys[kuh; gS tks
fuEuor~ gS%&

"Service
Law-Back-Held,
the
principle of 'No work, No Pay' cannot be
accepted as a rule of thumb- There are
exceptions where courts have granted
monetary benefits from back date also-
Full back wages in certain circumstances
may be justified."

blh izdkj ekuuh; mPpre U;k;ky;
}kjk Deepali Gundu Serwase Vs. Kranti
Junior Adhyapak Mahavidyalaya (D.E.D.)
and others (2014)2 Supreme Court Cases
(L& S) 184, (2013) 10 Supreme Court
Cases 324 esa ;g dgk x;k gS "Single Judge
committed grave error by interfering with
Tribunal's order for payment of back
wages, ignoring that charges levelled
against appellant where frivolous and
inquiry was held in gross violation of the
rules of natural justice-Hence, order of
single judge set aside-Tribunal's order,
resorted-Supreme
Court
directing
management to pay full back wages to
appellant.

(e)
Principles
reiteratedreinstatement entitles such employee to claim
full back wages-Denial of back wages would
amount to indirectly punishing the employee
and rewarding the employer by relieving him
of the obligation to pay back wages-Where
employer wants to deny back wages or contest
the employee's entitlement to get consequential
benefits, employer has to plead and prove that
employee was gainfully employed during the
intervening period.

mijksDr fof/k O;oLFkk ds izdk'k esa
;g Li"V gS fd ;kph ds fo:) yxk;s x;s
vkjksi fd mlds }kjk dksbZ vuq'kklughurk dh
x;h vFkok tku cw>dj xyr yksxks dks _.k
fn;k x;k ftlls jktdh; {kfr gqbZ] tkap ds ckn
lkfcr ugh gksrs gSaA ,slh n'kk esa tcfd ekuuh;
mPp U;k;ky; }kjk fjV ;kfpdk esa ;g Li"V
:i ls funsZ'k fn;k x;k gS fd ;kph ds lsok ls
ckgj jgus dh vof/k dks cszd bu lfoZl u ekuk
tk; vkSj mldh lsok dh fujUrjrk lsok ykHk ds
fy;s ekuh tk;sxh ;kph leLr lsok ykHk dh
fujUrjrk lsok ykHk ds fy;s ekuh tk;sxh ;kph
leLr lsok ykHk ikus dk vf/kdkjh gSA tgka rd
;kph dh lsok ls c[kkZLrxh o iquZLFkkiu ds chp
dh vof/k ds osru HkRrs dk lEcU/k gS ekuuh;
mPp U;k;ky; us Li"V dgk gS fd ;g tkap ds
vafre ifj.kke ds vk/kkj ij fuf.kZr fd;k
tk;sxkA ijUrq n.Mkf/kdkjh us bl lEcU/k esa dksbZ
rdZ laxr vkns'k ikfjr ugha fd;k vkSj ;g Hkh
Li"V gks pqdk gS fd ;kph fdlh vkjksi ds fy;s
nks"kh ugha gS] blfy;s mlds fo:) Þuks odZ uks
isß ds fl)kar ds vk/kkj osru u fn;s tkus
lEcU/kh ikfjr vkns'k fof/k lEer ugha gS D;ksafd
;kph bl chp dk;Z djus ds fy;s RkRij FkkA ;g
lsok ;kstd dk nkf;Ro gS fd og fl) djs fd
bl vof/k esa fdlh xsuiw.kZ lsok esa jgkA bl
lEcU/k es fyf[kr foospu esa dksbZ dFku ugha
fd;k x;k gSA ,slh n'kk esa Þuks odZ uks isß ds
fl)kar ij ;kph dks osru u fn;s tkus lEcU/kh
ikfjr vkns'k fujLr gksus ;ksX; gS vkSj ;kph bl
vof/k ds leLr lsok ykHk o osru izkIr djus
dk vf/kdkjh gSA rn~uqlkj iz'uxr vkns'k o
vihyh; vkns'k fujLr gksus ;ksX; gS rFkk ;kfpdk
Lohdkj fd;s tkus ;ksX; gSAß

39. On the issue of holding the
proper
regular
enquiry/disciplinary
proceedings,
the
Tribunal
recorded
specific finding that the enquiry officer has
not taken note of reply submitted by the
opposite party no.1 during the enquiry
before him and has also recorded a finding
that during the enquiry proceedings, no
date, time and place was fixed for
recording oral evidence. The Tribunal also
taken note of the factual aspect of the case.
Further, while allowing the claim petition
the Tribunal also considered that the order
1 All. U.P. Scheduled Caste Finance & Development Corporation Ltd. Vs. Surendra Pal Singh & Ors. 1773
of punishment dated 5.12.2014, is not
reasoned and speaking order.

40. The Tribunal after considering
the age of the claimant-respondent (63
years), as well as the facts of the present
case also given a finding that the matter
should not be remanded back for holding
enquiry afresh and the order of punishment
is liable to be set aside. Thereafter
Tribunal held that the punishment order is
liable to be set aside.

41. On the aspect of applying the
principle of 'No Work, No Pay' for the
period w.e.f. 19.09.2000 till 07.01.2010,
the Tribunal considering the facts to the
effect that the earlier punishment order
was challenged before this Court and on
account of procedural regularity, the
punishment order was interfered and also
considered the judgment dated 07.01.2010
and 05.04.2010 and thereafter held that the
period w.e.f. order of punishment dated
5.12.2000 till 07.01.2010, the date of order
passed by this Court, shall not be treated
as break in service but should be counted
for the purpose of service benefits. On this
aspect the Tribunal also considering the
finding given by it in the impugned
judgment to the effect that the enquiry
proceedings were held in violation of
principles of natural justice. The Tribunal
also considering the principle settled by
the Honb'le Apex Court on the issue of
applying the principle of 'No Work, No
Pay'. The Tribunal came to the conclusion
that the principle of 'No Work, No Pay'
was wrongly applied in this case and
interfered in the order dated 05.12.2014
and the appellate order dated 20.08.2016.

42. Admittedly, the present litigation
is second round of litigation. In earlier
record
of
litigation,
the
enquiry
proceedings initiated vide charge sheet
dated 25.08.1999 the petitioner was
dismissed from service of the corporation
vide order dated 19.09.2000, which was
challenged before the appellate authority
and the same was also dismissed vide
order dated 02.01.2003. Both the orders
were challenged before this Court by the
Writ Petition No.1582 of 2003 and this
Court interfered in the orders vide
judgment and order darted 07.01.2010.
The interference was made on the grounds
to the effect that the enquiry was
conducted in violation of principle of
natural justice. The judgment dated
07.01.2010 was challenged before the
division bench of this Court in Special
Appeal No.86 of 2010 and order of Single
Judge was modified in relation to the
payment of arrears and salary vide
judgment dated 05.04.2010.

43. Pursuant to the orders passed by
this Court in earlier record of litigation
enquiry afresh was initiated. No fresh
charge sheet was issued after the judgment
dated 5.4.2010 passed in the Special
Appeal no. 86 of 2010. In fact fresh
enquiry proceedings were carried out on
the basis of allegations/charges mentioned
in the charge sheet dated 25.08.1999,
which was issued for awarding major
punishment and the same was awarded.

44. From the aforesaid, it is crystal
clear that the enquiry proceedings were
initiated by issuing the charge sheet dated
25.08.1999
for
awarding
the
major
punishment under Rule 35 of the Rules.

45. On the basis of the conclusion
arrived by this Court that in fact the
proceedings were initiated for awarding
the punishment under Rule 35 of the Rules
which relates to awarding the major
1774 INDIAN LAW REPORTS ALLAHABAD SERIES
penalties, we would like to quote the
relevant Rules i.e. Rule 33 to Rule 35 of
Model Conduct, Disciplinary and Appeal
Rules for Public Undertakings, which is
part of Service Rules for Employers of
U.P.
Schedule
Castes,
Finance
&
Development Corporation Ltd. (in short
"Model Conduct Rules"). It is for
considering the findings of Tribunal on the
issue of holding regular enquiry.

46. On the findings of the Tribunal
which has been assailed by the petitioner,
on the issues of holding the proper regular
enquiry, we have considered the U.P.
Government
Servants
(Discipline
&
Appeal) Rules, 1999 (in short "Rules
1999") and Model Conduct Rules. We find
that Model Conduct Rules are applicable.

47. For the purposes of adjudication
for present case, we would like to refer the
relevant Rules of the Model Conduct
Rules, the same on reproduction reads as
under:-

Penalties:-

33. The following Penalties may,
for good and sufficient reasons and as
hereinafter provided, be imposed upon and
employee.

Minor Penalties:-

(a) Censure;

(b) Withholding of increments of
pay with or without cumulative effect;

(c) Withholding of promotion;

(d) Recovery from pay or such
other amount as may be due to him of the
whole or part of any pecuniary less caused
to
the
Corporation/Company
be
negligence or breach or orders.

Major Penalties:-

(e) Reduction to lower grade or
post, or to lower stage in a time scale;

(f) Removal from service which
shall not be a disqualification for future
employment;

(g) Dismissal;

The following shall not amount
to a penalty within the meaning of this
rule.

(1) Withholding of increment of
an employee on account of his work being
found unsatisfactory of not being of the
required standard, of for failure to pass a
prescribed or examination;

(2) Stoppage of an employee at
the efficiency bar in a time scale. On the
ground, of his unfitness to cross the bar;

(3) Non-promotion whether in an
officiating capacity or otherwise, of an
employee, to a higher post for which he
may be eligible but for which he has found
unsuitable after consideration of his case;
Reversion to a lower grade or post, of an
employee officiating in a higher grade or
post, on the ground that he is considered,
after trial, to be unsuitable for such higher
grade or post, or on administrative
grounds unconnected with his conduct;

(4) Reversion to his previous
grade or post, of an employee appointed
on probation to another grade or post
during or at the end of the period of
probation in accordance with the terms of
his appointment;

(5) termination of service;

(a) of an employee appointed on
probation, during or at the end of the
period of probation, in accordance with
the terms of his appointment;

(b) of an employee appointed in
temporary capacity otherwise than under
a contract or agreement, on the expiration
of the period for which he was appointed,
or earlier in accordance with the terms of
his appointment.

(c) of an employee appointed
under a contract of agreement, in
1 All. U.P. Scheduled Caste Finance & Development Corporation Ltd. Vs. Surendra Pal Singh & Ors. 1775
accordance with the terms of such contract
or agreement; and

(d) of any employee on reduction
of establishment.

Disciplinary Authority:-

34. The Disciplinary Authority,
as specified in the schedule, or any
authority empowered in this behalf by the
board may impose any of the penalties
specified in rule 33 on any employee.

Procedure
imposing
major
penalties:-

"Rule/Clause 35 (1) No order
imposing any of the major penalties
specified in Clauses (e), (f) and (g) of Rule
33 shall be made except after an inquiry is
held in accordance with this rule.

2. Whenever the disciplinary
authority is of the opinion that there are
grounds for inquiring into the truth of any
imputation of misconduct or misbehavior
against an employee, it may itself enquire
into, or appoint any public servant
(hereinafter called the inquiring authority)
to inquire into the truth thereof.

3. Where it is proposed to hold
an inquiry, disciplinary authority shall
frame definite charges on the basis of the
allegations against the employee. The
charges, together with a statement of the
allegations, on which they are based, a list
of document by which and a list of
witnesses by whom, the articles of charge
are proposed to be sustained, shall be
communicated in writing to the employee,
who shall be required to submit within
such time as may be specified by the
Disciplinary Authority (not exceeding 15
days), a written statement whether he
admits or denies any of or all the articles
of charges.

Explanation--It
will
not
be
necessary to show the documents listed
with the charge-sheet or any other
document to the employee at this stage.

4. On receipt of the written
statement of the employee, or if no such
statement is received within the time
specified, an enquiry may he held by the
Disciplinary Authority itself, or by any
other public servant appointed as an
Inquiring Authority under Sub-clause (2) :
Provided that it may not be necessary to
hold an enquiry in respect of the charges
admitted by the employee in his written
statement. The disciplinary authority shall,
however, record its findings on each such
charge.

(5)
Where
the
disciplinary
authority itself inquires or appoints an
inquiring authority for holding an inquiry,
it may, by an order appoint a public
servant to be known as the 'Presenting
Officer' to present on its behalf the case in
support of the articles of charge.

(6) The employee may take the
assistance of any other public servant but
may not engage a legal practitioner for the
purpose.

(7) On the date fixed by the
inquiring authority, the employee shall appear
before the Inquiring Authority at the time,
place and date specified in the notice. The
Inquiring Authority shall ask the employee
whether he pleads guilty to any of the articles
of charge the inquiring authority shall record
the plea, sign the record and obtain the
signature of the employee concerned thereon.
The inquiring Authority shall return a finding
of guilt in respect of those articles of charge to
which the employee concerned pleads guilty.