# Union of India & Ors v. Amit Kumar Mishra

- **Citation:** (2023) 4 ILRA 189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Writ-A No. 2805 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-amit-kumar-mishra-50092
- **Pages:** 5

## Headnote

order of suspension-allegations pertaining fraud
and embezzlement of money of depositorsguidelines provide review of put off duty to be
considered in the first instance by Superior
Authority-revocation
of
suspension
not
automatic after lapse of a stipulated timeTribunal committed an error in setting aside the
order of suspension-should have remitted it to
Superior Authority to take decision.

W.P. allowed. (E-9)

List of Cases cited:

Ajay Kumar Choudhary Vs U.O.I. through
Secretary,2015 (7) SCC 291

## Text

4 All. Union of India & Ors. Vs. Amit Kumar Mishra
189
be entitled to sue in respect of the portion
of the omitted or relinquished claim.
Similarly, Explanation IV of Section 11 of
the C.P.C., also provides that any matter
which might and ought to have been made
a ground of defence or attack in such
former suit or petition under Article 226,
shall be deemed to have been a matter
directly or substantially in issue in such suit
or proceedings.

7. The Hon'ble Supreme Court has
also, on more than one occasion deprecated
the practice of filing multiple writ petitions
on same or similar cause of action.
Reference in this regard can be made to the
judgment rendered in the case of Udyami
Evam
Khadi
Gramodyog
Welfare
Sanstha Vs. State of U.P. The question is
"Whether this Court should entertain
second petition particularly in view of the
defects pointed out above? The answer to
the aforesaid question, in the considered
view of this Court, has to be negative."

8. Supreme Court in Commissioner
of Income Tax, Bombay Vs. T.P.
Kumaran2; Union of India Vs. Punnilal,
observed as under:

"............ It is why the rule of
judicial practice and procedure that a second
writ petition shall not be entertained by the
High Court on the subject matter respecting
that the writ petition of the same person was
dismissed by the same Court even if the order
of such dismissal was in limine, be it on the
ground of latches or on the ground of nonexhaustion of alternative remedy, has come to
be accepted and followed as salutary rule in
exercise of writ jurisdiction of the Court."

9. Therefore, in view of the above
referred authorities, it is abundantly clear
that even if the provisions of the C.P.C. are
not applicable in writ jurisdiction, the
principle enshrined therein can be resorted
to for the reason that the principles, on
which the C.P.C. is based, are founded on
public policy and, therefore, require to be
extended and made applicable in writ
jurisdiction
also
in
the
interest
of
administration of justice. Any relief not
claimed in the earlier writ petition should
be deemed to have been abandoned by the
petitioner to the extent of the cause of
action claimed in the subsequent writ
petition and in order to restrain the person
from abusing the process of the Court, such
an order/course requires not only to be
resorted to but to be enforced.

10. On specific query, learned counsel
for the petitioner does not dispute that the
writ petition arises from the same cause of
action and the issue and relief being
claimed in the present writ petition could
have been raised in the alternative in the
earlier writ petition.

11. In view thereof, the second writ
petition for the same cause of action is not
maintainable, accordingly, dismissed.
----------
(2023) 4 ILRA 189
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 2805 of 2023

Union of India & Ors. ...Petitioners
Versus
Amit Kumar Mishra ...Respondent

Counsel for the Petitioners:
Sri Pranay Krishna
190 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
Sri Mohan Upadhyay, Sri Babu Nandan
Singh

Suspension-Tribunal directly set aside the
order of suspension-allegations pertaining fraud
and embezzlement of money of depositorsguidelines provide review of put off duty to be
considered in the first instance by Superior
Authority-revocation
of
suspension
not
automatic after lapse of a stipulated timeTribunal committed an error in setting aside the
order of suspension-should have remitted it to
Superior Authority to take decision.

W.P. allowed. (E-9)

List of Cases cited:

Ajay Kumar Choudhary Vs U.O.I. through
Secretary,2015 (7) SCC 291

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

1. Heard learned counsel for the
respective parties.

2. The present writ petition has been
filed by the Union of India / Senior
Superintendent of Post Offices, Varanasi,
assailing the order dated 01 August, 2022,
whereby, the suspension / put off duty of
the respondent-original applicant, has been
set aside. Aggrieved petitioners filed a
review
petition,
which
came
to
be
dismissed by order dated 21 September,
2022.

3. The learned counsel appearing for
the petitioners has raised a short question
that the Tribunal instead of directly setting
aside the order of suspension / put off duty,
should have remanded the matter to the
authority to review the put off duty as the
allegations against the respondent-original
applicant was serious pertaining fraud and
embezzlement of money of the depositors.
In other words, it was not open to the
Tribunal to have substituted itself for the
competent authority.

4. It is not in dispute, inter se, parties
that the provisions of the Department of
Posts, Gramin Dak Sevaks (Conduct and
Engagement) Rules, 2011, is applicable. In
exercise of powers conferred under Rule
12, the respondent / original applicant came
to be suspended / put off duty, by the
appointing authority vide order dated 7
December, 2020.

5. The respondent / original applicant
raised challenge to the order, inter alia, on
the ground that the respondent / original
applicant could not have continued under
suspension / put off duty, as the order was
not reviewed as per rule / directions issued
by the Director General and in support of
his submission, reliance was placed on the
decision rendered by the Hon'ble Supreme
Court in Ajay Kumar Choudhary vs.
Union
of
India
through
Secretary
reported in 2015 (7) SCC 291.

6. The reasoning assigned by the
learned Tribunal, allowing the original
application of the respondent reads thus :-

"6. It is not disputed that the
applicant was placed under suspension on
03.01.2020. There is nothing on record to
establish that his suspension was reviewed
from time to time as prescribed under the
rules. It is not understood as to what
purpose will be served by keeping the
applicant under further suspension. It is
also a fact that almost 18 months have
elapsed since the applicant had been
placed
under
suspension
without
conducting a review as prescribed under
the rules. Moreover, the said suspension
order is in contravention of the judgement
4 All. Union of India & Ors. Vs. Amit Kumar Mishra
191
of the Hon'ble Apex Court in Ajay Kumar
Chaudhary's case (supra).

9. For the forgoing reasons, the
OA is allowed and the impugned orders
dated 03.01.2020 and 07.12.2020 are
hereby quashed. The respondents are
directed to reinstate the applicant in
service within a period of two weeks from
the date a copy of this order is produced
before them by the applicant. The applicant
shall be entitled for the arrears of TRCA as
per rules."

7. The original applicant came to be
suspended / placed under put off duty, on
allegations of fraud and embezzlement of
the deposits made by the depositors. It is
further
alleged
that
the
respondent
manipulated the mobile numbers of the
account holders and substituting it with his
own mobile number and that of his
relatives. On complaints received from the
depositors, respondent / original applicant
came to be placed under suspension / put
off duty pending inquiry.

8. Rule 12 provides for put off duty
which reads thus :-

"12. Put Off duty

(1) The recruiting Authority or
any authority to which the Recruiting
Authority is subordinate or any other
authority empowered in that behalf by the
Government, by general or special order,
may put a Sevak Off duty;

(a)
Where
a
disciplinary
proceedings against him is contemplated or
is pending ; or

(b) Where a case against him in
respect of any criminal offence is under
investigation, enquiry or trial;

Provided that in cases involving
fraud or embezzlement, the Sevak holding
any post specified in the Schedule to these
rules may be put off duty by the Inspector
of
Post
Offices
or
the
Assistant
Superintendent of Post Offices of the SubDivision, as the case may be, under
immediate intimation to the Recruiting
Authority."

9. In other words, the employee can
be placed under put off duty by the
Recruiting Authority, that the disciplinary
proceedings against the
employee is
contemplated or pending.

10. The proviso to the rule mandates
that in the case of fraud or embezzlement,
the employee holding any post specified in
the Schedule to the Rules may be put off
duty by the Inspector of Post Offices or the
Assistant Superintendent of Post Offices
from the Sub-Division, as the case may be,
under
immediate
intimation
to
the
Recruiting Authority.

11. Sub-Clause (2) of the Rule
mandates that the order passed by the
Officers
noted
herein
above
being
subordinate to the Recruiting Authority
shall cease to be effective on the expiry of
the fifteen days unless earlier confirmed or
cancelled by the Recruiting Authority.

12. Reliance has been placed by the
respective counsels for the parties on the
Director
General
instructions,
the
guidelines governing putting off duty,
which mandates that putting an Extra
Departmental Agent off duty may cause a
lasting damage to his reputation, if he is
ultimately
exonerated.
The
competent
authority is, therefore, expected to exercise
his discretion with proper care and due
caution
while
ordering
an
Extra
Departmental Agent to be put off duty,
generally speaking, put off duty cases fall
under
two
categories,
namely,
cases
192 INDIAN LAW REPORTS ALLAHABAD SERIES
relating to frauds or cases relating to minor
incidents of indiscipline.

13. The guidelines further mandates
that having regard to the allegations of
fraud that may take some time, in the
pending
disciplinary
proceedings,
as
against the cases of the second category
involving administrative lapses should not
remain pending for long. The relevant
portion of the guidelines for the purposes of
case is extracted :-

"2.
Putting
an
ExtraDepartmental Agent off duty may cause a
lasting damage to his reputation if he is
ultimately
exonerated.
The
competent
authority is, therefore, expected to exercise
his discretion with proper care and due
caution
while
ordering
an
ExtraDepartmental Agent to be put off duty.
Generally speaking, put off duty cases fall
under two categories, vis., -

(i) cases relating to frauds; and

(ii) cases relating to unauthorized
absence,
leave
without
sanctioned
complaints from the public, etc.

While the inquiry into the first
type of cases may take some time, there is
no reason why the type of cases in the
second category involving administrative
lapses should remain pending for long. The
following guidelines by way of precaution
may, therefore, be strictly followed by the
competent authority before putting an
Extra-Departmental Agent off duty :-

(a) ......................

(b) the offence should be of such
a srious nature that removal from service
would be probable ultimate punishment
and it would therefore be inadvisable that
the offender should be allowed to continue
to perform his duties pending finalization
of the disciplinary case against him.

(c) ..............

(d) ..............

(e) .............

3. It is also necessary that the
disciplinary authority makes every efforts
to finalize the disciplinary proceedings and
pass final orders so that an EDA does not
remain on put off duty for a period
exceeding 45 days and not 120 days as
ordered
previously.
The
Divisional
Superintendent should draw up a time table
for ensuring finalization of disciplinary
cases within this period. If, due to
unavoidable reasons, it is not possible to
finalize a case within this period, the
matter should be reported immediately to
the next superior authority giving full
justification why the EDA cannot be taken
back to duty pending finalization of the
case. The superior authority should on
receipt of the repot immediately review the
case and consider -

(i) whether there is justification
to continue the EDA concerned off duty for
a further period; and

(ii) what steps should be taken
by the disciplinary authority to eliminate
all avoidable delay in finalizing the
case.

The superior authority will then
make an order accordingly.

14. Having regard to the guidelines,
it is categorically provided that the
disciplinary authority should in the event
that inquiry cannot be concluded within
120 days should report immediately to
the next Superior Authority giving full
justification why the employee cannot be
taken back on duty pending finalization
of the case. The Superior Authority
should
on
receipt
of
the
report
immediately
review
the
case
and
consider, inter alia, whether there is
justification to continue the employee on
put off duty for further period.
4 All. S. Sunanda Vs. Chairman, Indira Gandhi Rashtriya Udan Akademi, New Delhi & Ors.
193

15. In view thereof, it is evident that
the review of put off duty of an employee
in the first instance has to be considered by
the Superior Authority, after lapse of the
stipulated
time
upon
a
report.
The
revocation of suspension / put off duty of
an employee is not automatic after lapse of
a stipulated time.

16. On specific query, learned counsel
for the respondent is unable to show from
either the Rules or the guidelines that after
expiry of 120 days there is automatic
cessation of put off duty. Rather, the
guidelines mandate review of the order on
merit by a Superior Authority.

17. In the circumstances, in our
opinion, the learned Tribunal committed an
error in usurping upon itself the power of a
Superior Authority, thereby, setting aside
the impugned orders placing the respondent
on put off duty. The reasonable course
open to the Tribunal was that it should have
remitted the matter to the concerned
Superior Authority to take a decision
having regard to the charge against the
respondent / original applicant pertaining to
fraud and embezzlement of deposits of the
depositors.

18. Learned Tribunal also committed
an error in mechanically applying the ratio
of the judgement rendered in Ajay Kumar
Chaudhary (supra). On perusal of the
authority, it transpires that the employee
therein was placed under suspension and
the suspension continued for a prolonged
period for several years due to pendency of
C.B.I. Inquiry. The facts arising therein are
altogether in a different context and are not
applicable to the facts of the present case.

19. For the reason stated herein, we
are unable to persuade ourselves to accept
the opinion rendered by the learned
Tribunal. Accordingly, the writ petition
succeeds and is allowed. The impugned
order dated 01 August, 2022 is set aside
and quashed.

20. The matter is remitted to the
competent Superior Authority to review the
put off duty / suspension of the respondent
/ original applicant in the light of the
guidelines.
It
is
expected
that
an
appropriate
order
shall
be
passed
expeditiously preferably within six weeks
from the date of filing certified copy of this
order,
provided
there
is
no
other
impediment.

21. It is clarified that we have not
expressed any opinion on the rival
contentions and merit of the pending
disciplinary
proceedings
against
the
original applicant.
----------

(2023) 4 ILRA 193
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.04.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 9347 of 2021

S. Sunanda ...Petitioner
Versus
Chairman, Indira Gandhi Rashtriya Uran
Akademi, New Delhi & Ors. ...Respondents

Counsel for the Petitioner:
Anupam Verma, Capt. Pramod Kumar Bajaj

Counsel for the Respondents:
Yogesh Chandra Bhatt, Anurag Srivastava