U.P. Co-Operative Federation Ltd. Thru. Its Managing Director and Another Vs Ashok Kumar Seth and Another

This appeal is directed against order dated 21.04.2025 passed in Writ-A No. 1540 of 2005, whereby the writ petition filed by the respondent has been allowed and impugned punishment order dated 10.01.2005 has been quashed. The respondent has been held entitled for 30 percent back wages and retiral benefits as permissible in law.

¶13

The writ petition was filed aggrieved of the order of punishment dated 10.01.2005 passed by appellant no.2. It was inter alia submitted in the writ petition that the respondent was appointed on the post of Assistant in the year 1976 and was confirmed in 1978. He was promoted to the post of Assistant Godown Keeper in 1988 and in 1996, he was transferred as Store In-charge at Lakhimpur Kheri.

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Special Appeal No. 311 of 2025

¶16

A charge sheet containing two charges was issued to the respondent requiring reply within 15 days. As the respondent failed to file reply, inquiry report was submitted by the Inquiry Officer on 16.10.2003 holding him guilty of charges levelled against him.

¶17

Questioning the validity of the inquiry conducted by the Inquiry Officer, it was contended on behalf of the respondent that the Inquiry Officer did not fix any date, time and place for holding the inquiry nor any witness was examined to prove the photocopies of certain papers referred to/relied on by the Inquiry Officer.

¶18

The Managing Director, based on the inquiry report, issued a show cause notice to the respondent dated 02.07.2004 proposing two punishments and granted three days’ time to file reply. However, on 13.08.2004, another show cause notice was issued whereby the proposed punishment was changed based on the same material.

¶19

The respondent submitted a detailed reply to the show cause notice and denied the charges and questioned the findings recorded by the Inquiry Officer. On 10.01.2005, the order impugned was passed dismissing him from service and ordering for recovery of a sum of Rs. 4,48,098/-.

¶20

Plea was raised before the learned Single Judge regarding noncompliance of provisions of the U.P. Co-operative Societies Employees Service Regulations, 1975 (for short ‘the Regulation’), which deals with disciplinary proceedings in Regulation 85. Submissions were made that principles of natural justice, as required to be observed, were violated, inasmuch as opportunity of hearing was not provided. The Inquiry Officer did not fix any date, time and place for holding the inquiry, presenting officer was also not appointed, no witness was examined by the Inquiry Officer. None of the materials used against the respondent were proved by calling the originals from the concerned department. Copies of stock register were relied on which were never supplied nor disclosed. It was submitted that even if the respondent had not filed reply to the charge sheet, ex parte evidence was required to be led, as theory of

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admission on non-appearance is erroneous. It was prayed that the order impugned be quashed.

¶24

The dismissal order was defended by the appellants on the ground of non-filing of reply to the charge sheet with the submissions that nonfiling of reply results in presumption of guilt. It was submitted that inquiry was conducted according to the procedure prescribed under Regulation 85 of the Regulations. Submissions were also made that the disciplinary authority had passed a reasoned order which did not call for any interference.

¶25

Learned Single Judge, after hearing the parties, referred to judgment of Hon’ble Supreme Court in State of Uttar Pradesh and others Vs. Saroj Kumar Sinha: (2010) 2 SCC 772, wherein it was laid down that even in absence of delinquent employee, the Inquiry Officer has to examine whether the unrebutted evidence is sufficient to hold that the charges are proved and as no oral evidence was led and documents were not proved, the same could not be taken into consideration to conclude that the charges were proved.

¶26

Reference was also made to judgment in Roop Singh Negi Vs. Punjab National Bank and others: (2009) 2 SCC 570, wherein the fact that no witness was examined to prove the documents and the management witnesses merely tendered the documents and did not prove the contents thereof was negatively viewed.

¶27

Further reference was also made to Smt. Aamina Vs. Nagar Palika Parishad, Pratapgrah and others: 2012 (30) LCD 1671, wherein it was laid down that even in case of an ex parte inquiry, intimation should be given to delinquent employee about the date, time and place of oral inquiry and charges should be proved even if no response to the charges is submitted by the employee concerned.

¶28

The plea raised by the appellants based on judgments in State Bank of India and others Vs. Narendra Kumar Pandey: (2013) 2 SCC 740 and PEPSU Road Transport Corporation Vs. Rawel Singh: (2008) 4 SCC 42 was considered and learned Single Judge came to the conclusion that the

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documents were not proved and the Inquiry Officer gave the inquiry report without following the principles of natural justice. The documents in support of the charges were not proved. The inquiry report was found to be vitiated for failure of natural justice and consequently the same was found liable to be quashed.

¶32

Learned Single Judge whereafter referred to judgments in Dev Prakash Tewari Vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others: (2014) 7 SCC 260 and Brahmanand Tyagi Vs. State of U.P. and others: 2022 (8) ADJ 624, holding that fresh proceedings to initiate the departmental proceedings cannot be allowed as the respondent had attained the age of superannuation in the year 2013 and he was 72 years old and consequently allowed the writ petition and granted the relief, as noticed hereinbefore.

¶33

Learned counsel for the appellants made vehement submissions that the inquiry was conducted by complying with the principles of natural justice and the Regulations, once the respondent chose not to file response to the charge sheet, the Inquiry Officer was justified in deciding the matter based on available record. Submissions were made that once the response was not given, it was even open for the disciplinary authority to award appropriate punishment, however, full opportunity was given by the disciplinary authority and a reasoned order has been passed, which does not call for any interference.

¶34

Further submissions were made that learned Single Judge was not justified in granting back wages, inasmuch as in the prayer clause of the writ petition, quashing of the order of punishment was sought along with reinstatement with consequential benefits and no relief was sought for back wages and therefore, the order to that extent also is bad.

¶35

It was also submitted that once the learned Single Judge found defect in the inquiry, instead of quashing the punishment order, matter should have been remanded back to the Inquiry Officer for taking it to logical conclusion. It was prayed that the order impugned passed by learned Single Judge be set aside. Reliance was placed on judgments in M.L.

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Singla Vs. Punjab National Bank and another: (2018) 18 SCC 21 and Chief Regional Manager, United India Insurance Company Limited Vs. Siraj Uddin Khan: (2019) 7 SCC 564.

¶39

Learned counsel for the respondent supported the order impugned. Submissions were made that it was apparent from the charge sheet that no date, time and place for appearance/inquiry was fixed by the Inquiry Officer and during course of inquiry, documents beyond what was indicated in the charge sheet were taken into consideration. Further, no witness was examined and the documents relied on in the inquiry report were not proved. There was gross violation of principles of natural justice in not fixing the date and not examining any witness as, in case, any witness was examined, the respondent would have cross-examined the said witness, failure thereof has resulted in vitiating the inquiry.

¶40

Further submissions were made that the plea raised questioning the award of back wages has no substance as once the inquiry stood vitiated, the respondent, as a natural consequence, is entitled for the back wages. The learned Single Judge has only allowed 30 percent of the back wages. 19. Further submissions were made that the prayer made in the writ petition has to be seen in the context that the same was made when the respondent had not attained the age of superannuation and therefore, reinstatement with consequential benefits was prayed and therefore, the plea raised regarding not seeking back wages, has no substance. It was submitted that the prayer made regarding remanding back the matter to the Inquiry Officer essentially is only with a view to deprive the respondent of the legitimate dues, inasmuch as he has already reached the age of 72 years and the subject matter of the inquiry pertains to the year 1998 and therefore, the plea raised deserves to be rejected. Reliance was placed on judgment in State of Kerala and others Vs. E.K. Bhaskaran Pillai: (2007) 6 SCC 524 and State of Uttar Pradesh Vs. Dayanand Chakrawarty and others: (2013) 7 SCC 595.

¶41

We have considered the submissions made and have perused the material available on record.

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Special Appeal No. 311 of 2025

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The facts and the law are undisputed, wherein the charge sheet issued to the respondent did not indicate any date, time and place for his appearance for responding to the charge sheet/inquiry. No further dates were fixed. The respondent did not file any reply and it is not his case that any attempt was made to file reply. The Inquiry Officer, on his part, also did not make any effort to seek his presence during course of inquiry as apparently the Inquiry Officer, based on the documents mentioned in the charge sheet, arrived at a finding of respondent’s guilt mainly on account of his non-appearance. The documents, as produced, were taken as proof/made basis for arriving at the findings without any of the witnesses proving the said documents.

¶45

In the case of Saroj Kumar Sinha (supra), Hon’ble Supreme Court inter alia observed as under:

¶46

“28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

¶47

29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

¶48

30. When a department enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

¶49

Further, in the case of Roop Singh Negi (supra), it was observed as under:

¶50

“14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The

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charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.”

¶54

In view of the law laid down by Hon’ble Supreme Court, requiring observance of principles of natural justice and leading of evidence for the purpose of proving of documents even in an ex par te proceedings, clearly the inquiry report stood vitiated.

¶55

Coming to the aspect of relief granted by learned Single Judge of quashing of the disciplinary proceedings and not remanding back the matter to the Inquiry Officer, admittedly, the charges pertain to the year 1998 and over 27 years have passed since the time/period of alleged delinquency, the respondent has attained the age of over 72 years now and to expect him post-retirement at this age, to face the disciplinary proceedings, would be against all canons of justice. Further, the appellants have failed to indicate any provision whereby post-retirement the disciplinary proceedings could be continued afresh.

¶56

So far as the submissions relating to back wages are concerned, the submission made that no relief of back wages was claimed in the writ petition is without any substance, inasmuch as the petition was filed in the year 2005 when the respondent was nowhere near the age of superannuation and therefore, he had sought reinstatement in service with all consequential benefits, however, as during pendency of the writ petition for about 20 years, as he has attained the age of superannuation, and his termination has been vitiated, the award of back wages is only a natural consequence though learned Single Judge has reduced the same to 30 percent.

¶57

Hon’ble Supreme Court in the case of Dayanand Chakrawarty (supra) inter alia referring to the judgments in Harwindra Kumar Vs.

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Chief Engineer, Karmik and others: (2005) 13 SCC 300, Chairman, U.P. Jal Nigam and another Vs. Radhey Shyam Guatam and another: (2007) 11 SCC 507 and U.P. Jal Nigam and another Vs. Jaswant Singh and another: (2006) 11 SCC 464, has laid down as under:

¶61

“48. In view of the orders passed by this Court in Harwindra Kumar, Radhey Shyam Gautam and Jaswant Singh, it was not open to the High Court to rely on some other decision of this Court, ratio of which is not applicable in the present case for determining back wages of the respondents restricting it to be 20% of the basic salary. We observe that the principle of “no pay no work” is not applicable to the employees who were guided by specific rules like Leave Rules, etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of “no pay no work” shall not be applicable to such employee.”

¶62

Further, in the case of E.K. Bhaskaran Pillai (supra), where the Hon’ble Supreme Court was dealing with monetary benefits on grant of retrospective promotion, it was observed that the principle of 'no work no pay' cannot be accepted as a rule of thumb.

¶63

So far as the judgment in the case of M.L. Singla (supra) is concerned, the Court was dealing with an award passed by the Labour Court, wherein it was found that the workman had not pleaded with proof with the aid of evidence that he was not gainfully employed after his dismissal from service. However, in the present case, the petition was filed immediately after the punishment was imposed and therefore, there was absolutely no occasion to plead and prove the said aspect at that stage and as the matter remained pending before the High Court for 20 years, it was not expected of the respondent to amend the petition and seek further relief.

¶64

So far as the judgment in the case of Siraj Uddin Khan (supra) is concerned, it was found that in the said case, that the respondent was not kept away from work on account of dismissal as the dismissal order was passed after retirement.

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The issue of grant of back wages has been considered in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya and others: (2013) 10 SCC 324, wherein it has been categorically laid down by Hon’ble Supreme Court that if the employer wants to deny back wages to the employee, then it is for him to specifically plead and prove that during the intervening period, the employee was gainfully employed. The denial of back wages to an employee, who has suffered due to illegal act of the employer, would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. Even in the present appeal no allegations have been made/material produced to show that respondent was gainfully employed.

¶68

In view of the above discussions, plea questioning the award of 30% back wages also apparently has no substance.

¶69

In view of the above discussion, there is no substance in the appeal, the same is therefore, dismissed .

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No order as to costs.

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(Jaspreet Singh, J) (Arun Bhansali, CJ)

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December 08, 2025 AHA

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Digitally signed by :- AFZAL HUSAIN ABBASI High Court of Judicature at Allahabad, Lucknow Bench

U.P. Co-Operative Federation Ltd. Thru. Its Managing Director and Another v. Ashok Kumar Seth and Another

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U.P. Co-Operative Federation Ltd. Thru. Its Managing Director and Another v. Ashok Kumar Seth and Another

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