# U.P. State Ware Housing Corp. Lucknow v. Sri Brish Bhan Singh and another

- **Citation:** (2011) 2 ILRA 499
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-20
- **Bench:** Devi Prasad Singh, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-ware-housing-corp-lucknow-v-sri-brish-bhan-singh-and-another-41909
- **Pages:** 5

## Headnote

C.S.C.
Sri R.K. Upadhyay

Civil
Service
Regulations-Regulation
351-A-Disciplinary Proceeding against
retired employee of Corporation-Tribunal
Set-a-side
the
proceeding
as
no
permission
under
Regulation
351-A
taken-misconceived-in
absence
of
specific
provision
in
corporationstatutory-provision
meant
for
Govt.
employee can not be made applicableRespondent
employee-facing
charge
sheet on 29.08.06 in pursuance of
proceedings initiated on 19 04. 2004while retired on 31.07.2004-held-after
retirement
of
delinquent
employeepetitioner has no right to continue with
disciplinary proceeding.

Held: Para 6 and 8

In response to the argument, the learned
counsel
for
the
private
respondent
submits that in absence of any provision
as contained in Regulation 351-A of Civil
Services Regulations, the petitioner lacks
jurisdiction to initiate enquiry against
the retired employee. He further submits
that action against a retired employee
may
be
taken
in
accordance
with
existing rules or regulations and not
otherwise. He relied upon the cases
reported in AIR 1990 SC 463 C.L. Verma
versus State of M.P and another and AIR
1999 SC 1841 Bhagirathi Jena versus
Board of Directors, O.S.F.C and others.

Keeping in view the admitted facts, the
argument
advanced
by
the
learned
counsel for the respondents seems to be
correct that in absence of any provision,
the petitioner has got no right to initiate
or
continue
with
the
disciplinary
proceedings against a retired employee.
The case of C.L. Verma(supra) also
relates
to
alike
controversy.
Their
Lordships of Hon'ble Supreme Court held
that in absence of any specific provision,
no
disciplinary
proceeding
may
be
initiated against the retired employee
because after retirement, relationship
between master and servant comes to an
end.
Case law discussed:
AIR 1990 SC 463 ; AIR 1999 SC 1841; (2007)
9 SCC 698;

## Text

2 All] U.P. State Ware Housing Corp. Lucknow V. Sri Brish Bhan Singh and another
499
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.05.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Service Bench No. - 163 of 2011

U.P. State Ware Housing Corp. Lucknow
Through Its M.D.

 ...Petitioner
Versus
Sri Brish Bhan Singh and another

 ...Respondents

Counsel for the Petitioner:
Sri Rakesh K. Chaudhary

Counsel for the Respondents:
C.S.C.
Sri R.K. Upadhyay

Civil
Service
Regulations-Regulation
351-A-Disciplinary Proceeding against
retired employee of Corporation-Tribunal
Set-a-side
the
proceeding
as
no
permission
under
Regulation
351-A
taken-misconceived-in
absence
of
specific
provision
in
corporationstatutory-provision
meant
for
Govt.
employee can not be made applicableRespondent
employee-facing
charge
sheet on 29.08.06 in pursuance of
proceedings initiated on 19 04. 2004while retired on 31.07.2004-held-after
retirement
of
delinquent
employeepetitioner has no right to continue with
disciplinary proceeding.

Held: Para 6 and 8

In response to the argument, the learned
counsel
for
the
private
respondent
submits that in absence of any provision
as contained in Regulation 351-A of Civil
Services Regulations, the petitioner lacks
jurisdiction to initiate enquiry against
the retired employee. He further submits
that action against a retired employee
may
be
taken
in
accordance
with
existing rules or regulations and not
otherwise. He relied upon the cases
reported in AIR 1990 SC 463 C.L. Verma
versus State of M.P and another and AIR
1999 SC 1841 Bhagirathi Jena versus
Board of Directors, O.S.F.C and others.

Keeping in view the admitted facts, the
argument
advanced
by
the
learned
counsel for the respondents seems to be
correct that in absence of any provision,
the petitioner has got no right to initiate
or
continue
with
the
disciplinary
proceedings against a retired employee.
The case of C.L. Verma(supra) also
relates
to
alike
controversy.
Their
Lordships of Hon'ble Supreme Court held
that in absence of any specific provision,
no
disciplinary
proceeding
may
be
initiated against the retired employee
because after retirement, relationship
between master and servant comes to an
end.
Case law discussed:
AIR 1990 SC 463 ; AIR 1999 SC 1841; (2007)
9 SCC 698;

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Affidavits have been exchanged
between the parties. With the consent of
the parties' counsel, we decide the writ
petition finally at admission stage.

2. Heard Mr. R.K. Chaudhary,
learned counsel for the petitioner and
Mr. R.K. Upadhyay, learned counsel for
the respondents and perused the record.

3. The claimant respondent was
posted as Assistant Regional Manager in
the
U.P.
State
Ware
Housing
Corporation (in short, corporation). He
was served with a charge-sheet on
29.8.2006.
Disciplinary
proceedings
were initiated against the claimant
respondent vide order dated 19.4.2004
with regard to certain negligence and
carelessness
committed
by
the
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
respondent No.1 during the course of
employment
causing
loss
to
the
corporation.
The
respondent
No.1
retired from service on 31.7.2004.
Thereafter, on 2.5.2006, a show cause
notice was served calling upon him to
submit a reply with regard to certain
loss caused to the corporation. The
respondent No.1 submitted a reply on
16.6.2006 and after considering the
reply submitted by the respondent, a
charge-sheet
dated
29.8.2006
was
served, in response to which the
petitioner
submitted
a
response.
However, it has been stated by the
petitioner's counsel that no reply was
submitted by the claimant respondent.

4. The disciplinary proceedings
were subject matter of dispute before
the tribunal. The claimant respondent
assailed the initiation of the disciplinary
proceedings against him on the ground
that it is violative of the provisions of
Regulation 351-A of Civil Services
Regulations. It was stated before the
tribunal by the claimant respondent that
no permission was accorded to initiate
disciplinary
proceedings
by
the
Managing
Director
in
terms
of
Regulation 351-A of Civil Services
Regulations. The tribunal has allowed
the claim petition and set aside the
disciplinary proceedings with a further
direction to pay cost.

5. While assailing the impugned
order, it is submitted by the learned
counsel appearing for the petitioner that
Regulation 351-A of Civil Services
Regulations is not applicable with
regard to employees of corporation
since the corporation has not adopted
the government rules or regulations and
it is covered by independent service
rules. However, it has been admitted by
the petitioner's counsel that in service
rules, no such provision has been made
to initiate enquiry against a retired
employee. He submits that the provision
as given in Regulation 351-A of Civil
Services Regulations has been followed
while holding the enquiry.

6. In response to the argument, the
learned
counsel
for
the
private
respondent submits that in absence of
any
provision
as
contained
in
Regulation 351-A of Civil Services
Regulations,
the
petitioner
lacks
jurisdiction to initiate enquiry against
the retired employee. He further submits
that action against a retired employee
may be taken in accordance with
existing rules or regulations and not
otherwise. He relied upon the cases
reported in AIR 1990 SC 463 C.L.
Verma versus State of M.P and another
and AIR 1999 SC 1841 Bhagirathi Jena
versus Board of Directors, O.S.F.C and
others.

7. During the course of argument,
learned
counsel
for
the
petitioner
admitted that the Service Rules and
Regulations of the corporation do not
contain
any
provision
to
initiate
disciplinary proceedings against the
retired employee. It has also been
admitted
that
the
Board
of
the
corporation
has
not
adopted
the
provisions contained in Regulation 351A of Civil Services Regulations to
regulate the service conditions of the
employees.

8. Keeping in view the admitted
facts, the argument advanced by the
learned counsel for the respondents
seems to be correct that in absence of
2 All] U.P. State Ware Housing Corp. Lucknow V. Sri Brish Bhan Singh and another
501
any provision, the petitioner has got no
right to initiate or continue with the
disciplinary
proceedings
against
a
retired employee. The case of C.L.
Verma(supra) also relates to alike
controversy. Their Lordships of Hon'ble
Supreme Court held that in absence of
any specific provision, no disciplinary
proceeding may be initiated against the
retired
employee
because
after
retirement, relationship between master
and servant comes to an end. Relevant
portion from the judgment of C.L.
Verma(supra) is reproduced as under :

"6. The question which arose for
consideration in the writ petition before
the High Court at the instance of the
appellant was whether in the face of the
mandate in R. 29 the administrative
order could operate. It is not the stand
of the State Government that the order
dated 15th of May, 1981, is one under
the proviso to R. 29. In fact, the tenor of
the proviso clearly indicates that it is
intended to cover specific cases and
individual employee. An administrative
instruction cannot compete with a
statutory rule and if there be contrary
provisions in the rule the administrative
instructions must give way and the rule
shall prevail. We are, therefore, of the
view that the appellant, in terms of
R.29, ceased to be a Government
employee on his attaining the age of 58
years, two days prior to the order of
dismissal. In view of the fact that he had
already superannuated, Government had
no right to deal with him in its
disciplinary jurisdiction available in
regard to employees. The ratio of the
decision in R.T. Rangachari v. Secretary
of State for India in Privy Council, 64
Ind. App. 40 : (AIR 1937 PC 27)
supports the position."

9. In the case reported in AIR 1999
SC 1841 Bhagirathi Jena versus Board
of Directors, O.S.F.C and others, their
Lordships of Hon'ble Supreme Court
have reiterated the aforesaid proposition
of law and held that the disciplinary
proceedings
cannot
continue
after
superannuation unless it is provided
under the Service Rules or Regulation.
Relevant portion from the judgment of
Bhagirathi Jena (supra) is reproduced as
under :

"6. In view of the absence of such
provision in the above said regulations,
it must be held that the Corporation had
no legal authority to make any reduction
in the retiral benefits of the appellant.
There
is
also
no
provision
for
conducting a disciplinary enquiry after
retirement of the appellant and nor any
provision
stating
that
in
case
misconduct is established, a deduction
could be made from retiral benefits.
Once the appellant had retired from
service on 30.6.95, there was no
authority vested in the Corporation for
continuing the departmental enquiry
even for the purpose of imposing any
reduction in the retiral benefits payable
to the appellant. In the absence of such
authority, it must be held that the
enquiry had lapsed and the appellant
was entitled to full retiral benefits on
retirement.

8.The question has also been raised
in the appeal in regard to the payment of
arrears of salary and other allowances
payable to the appellant during the
period he was kept under suspension
and up to the date of superannuation.
Inasmuch as the enquiry had lapsed, it
is, in our opinion, obvious that the
appellant would have to get the balance
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
of the emoluments payable to him after
deducting the suspension allowance that
was paid to him during the abovesaid
period.

9.The appeal is therefore allowed
directing the respondent to pay arrears
of salary and allowances payable to him
during the period of suspension up to
the
date
of
superannuation
after
deducting the suspension allowance
paid to him for the said period and also
to pay the appellant, all the retiral
benefits otherwise payable to him in
accordance with rules and regulations
applicable, as if there had been no
disciplinary enquiry or order passed
therein."

10. In one other case reported in
(2007)9 SCC 698 State of U.P and
others versus R.C. Mishra, Hon'ble
Supreme Court while interpreting the
provisions contained in Regulation 351-A
of the Civil Services Regulations held that
in case an enquiry is initiated before the
age of superannuation, then, in such a
situation, it shall not be necessary to
receive fresh approval from the competent
authority under Regulation 351-A read
with Regulation 470 of the Civil Services
Regulations. Relevant portion from the
judgment
of
R.C.
Mishra(supra)
is
reproduced as under :

"10. A combined reading of the
proviso and the Explanation would show
that there is no fetter or limitation of any
kind
for
instituting
departmental
proceedings against an officer if he has
not attained the age of superannuation and
has not retired from service. If an officer
is either placed under suspension or
charges are issued to him prior to his
attaining the age of superannuation, the
departmental proceedings so instituted
can validly continue even after he has
attained the age of superannuation and has
retired and the limitation imposed by subclause (I) or sub-clause (ii) of Clause (a)
of proviso to Regulation 351-A will not
apply. It is only where an officer is not
placed under suspension or charges are
not issued to him while he is in service
and
departmental
proceedings
are
instituted against him under Regulation
351-A after he has attained the age of
superannuation and has retired from
service and is not under re-employment,
that the limitations imposed by subclauses (I) and (ii) of Proviso (a) shall
come into play."

11. However, the case of R.C.
Mishra(supra) seems to be not applicable
under the facts and circumstances of the
present case for two reasons. The case of
R.C. Mishra (supra) relates to a situation
where the service condition was governed
by Regulation 351-A of the Civil Services
Regulations whereas in the present case,
there is no such rule regulating the service
conditions of the retired employee of the
corporation and secondly, in the present
case, the charge sheet was served after
retirement.

12. Now, it is settled law that the
enquiry shall be deemed to be initiated
from the date when the charge-sheet is
served on an employee.

13. In view of above, present writ
petition lacks merit. It is accordingly
dismissed. The order passed by the
tribunal is confirmed.
---------
2 All] Ajeeth Singh Yadav and others V. State of U.P.
503
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCNOW DATED: 26.05.2011

BEFORE
THE HON'BLE F.I.REBELLO,C. J.
THE HON'BLE DEVENDRA KUMAR ARORA,J.

Special Appeal No. - 410 of 2011

Ajeeth Singh Yadav and others 2143
(M/S)2011

 ...Petitioners
Versus
State Of U.P.Through Its Secy. Higher
Education Civil Sectt. ...Respondents

Counsel for the Petitioner:
Sri Faisal Ahmad Khan

Counsel for the Respondents:
C.S.C
Sri C.B.Pandey
Dr. Ravi Kumar Mishra
Sri S.P.Shukla
Sri S.P.Singh

Constituton
of
India,
Article
226cancellation
of
admission-Lucknow
University issued Brochure as JEE B.Ed
2010-before counseling the candidate
have to deposit Rs. 5000/-after being
selected they have to deposit requisite
confirmation
fees
Rs.
2250/-in
counter-Petitioner/Appellant
not
deposited
any
amount
with
confirmation counter under impression
they have already deposited much
exceed
amount-given admission
by
affiliate
colleges-subsequently
the
Universities
in
second
round
of
counseling fulfilled those vacant seatwhich resulted cancellation of first
counseling
admission-held-arbitrary
illegal deposit of lesser amount toward
confirmation and getting refund the
balance
amount
from
respective
college simple procedural-meritorious
candidate's candidature can not be
canceled-consequential
direction
issued.

Held: Para 15

In our opinion, if a view is taken that
there is a power of cancellation though
the candidates deposits covered the fees
payable then a meritorious candidate
who had been selected and had paid his
fees as the deposit was sufficient, then
such a view would be arbitrary as that
would amount to a penalty to pay
additional fees though fees were not
payable.
A
procedural
requirement
cannot result in denying to a meritorious
candidate the seat if in fact he had
deposited the fees. Further the colleges
to
which
they
were
allotted
had
admitted them. Thus a mere procedural
failure cannot result in depriving the
candidate of the seat. Merely because
after the allotment they had not reported
to the college fee deposition counter,
will
not
result
in
denying
such
candidates their right of completing the
course after being admitted. In our
opinion,
the
admission
would
be
complete the very moment the candidate
was selected and the necessary fees had
been deposited and was admitted to the
college. The requirement in the brochure
was only a procedural requirement to
enable the University to know if there
was any vacancy and the candidate who
was allotted to the college had been
admitted. By any stretch of imagination
it cannot result in holding that because
of
non
completion
of
the
said
requirement,
the
admission
of
the
candidate itself would be non-est. We
reiterate that the moment the students
are
admitted
and
the
respective
University accepts, then their admission
was
complete.
The
action
of
the
University as the allotting authority in
allotting candidates in the second round
against the said purported vacancy
would
thus
be
arbitrary
and
consequential action of the Lucknow
University after the allotment has been
completed, is illegal. The admission
could only be cancelled by the respective
Colleges or the University to which it
was
affiliated
and
that
too
after