# Ajai Kumar Verma v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 585
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-26
- **Case number:** Writ-A No. 6602 of 2000
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajai-kumar-verma-v-state-of-u-p-ors-49090
- **Pages:** 19

## Headnote

A. Service Law - UP Government Servants
(Discipline and Appeal) Rules, 1999 - R. 6
& 7 - Disciplinary proceeding - Principle
of
Natural
Justice
-
No
supply
of
preliminary
enquiry
report
to
the
employee
-
Effect
-
Held,
without
supplying the preliminary enquiry report
to the employee, the impugned order
cannot be passed - The impugned order
has been passed in utter disregard of the
principles of natural justice, hence, is not
sustainable in Law. (16 and 19)
B. Service Law - Disciplinary proceeding -
Principle of Natural Justice - Opportunity of
hearing - Finding of preliminary enquiry
report, how far reliable in regular disciplinary
proceeding - Held, once the decision is taken
by the authorities to institute regular
disciplinary proceedings then findings in the
preliminary enquiry report ordinarily is not to
be relied upon - In case, such a report is to
be
relied
upon,
then
the
delinquent
employees has to be confronted with such
materials, and only after hearing their
version in the matter that such a report could
be relied upon. Any other course followed
would clearly be a violation of principles of
natural justice. (Para 22)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

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9 All. Ajai Kumar Verma Vs. State of U.P. & Ors.
585
here we find that the appellant was heard
and was represented by the learned Counsel
before the learned Single Judge. There is no
case either on the grounds raised or in the
affidavit
that
the
learned
Counsel
representing the appellant before the
learned Single Judge asked for time to file
a counter affidavit, which was not granted.
Apparently, the learned Counsel for the
appellant, as the tenor of the judgment
impugned would show, chose to address the
Court on merits without seeking time to file
a counter affidavit. In our opinion,
therefore, the appellant cannot be permitted
to raise a grievance of that kind once before
the learned Single Judge the appellant
chose to address the Court on merits, sans
an affidavit on their behalf. Even otherwise,
most of the papers were on record of the
writ petition and the issue is essentially
about jurisdiction based on facts, that are
sufficiently available on the existing
papers. No prejudice to the appellant,
therefore, has been demonstrated. In our
opinion, the learned Single Judge has
committed no error in directing the
Assistant Registrar to make a reference
under Section 25(1) of the Act.

21. No point was argued or raised
before us in addition to that which was
considered and dealt with by the learned
Single Judge.

22. We find no merit in the appeal.
The appeal fails and is dismissed.
----------
(2022) 9 ILRA 585
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 26.08.2022

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 6602 of 2000

Ajai Kumar Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Prashant Kumar, Siddharth Lal Vaish, Sudeep
Kumar, Sushil Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government Servants
(Discipline and Appeal) Rules, 1999 - R. 6
& 7 - Disciplinary proceeding - Principle
of
Natural
Justice
-
No
supply
of
preliminary
enquiry
report
to
the
employee
-
Effect
-
Held,
without
supplying the preliminary enquiry report
to the employee, the impugned order
cannot be passed - The impugned order
has been passed in utter disregard of the
principles of natural justice, hence, is not
sustainable in Law. (16 and 19)
B. Service Law - Disciplinary proceeding -
Principle of Natural Justice - Opportunity of
hearing - Finding of preliminary enquiry
report, how far reliable in regular disciplinary
proceeding - Held, once the decision is taken
by the authorities to institute regular
disciplinary proceedings then findings in the
preliminary enquiry report ordinarily is not to
be relied upon - In case, such a report is to
be
relied
upon,
then
the
delinquent
employees has to be confronted with such
materials, and only after hearing their
version in the matter that such a report could
be relied upon. Any other course followed
would clearly be a violation of principles of
natural justice. (Para 22)
Writ petition allowed. (E-1)
List of Cases cited:-
1. U.O.I. & anr. Vs Tulsiram Patel; (1985) 3 SCC
398
2. Hari Niwas Gupta Vs St. of Bihar & anr.;
(2020) 3 SCC 153
586 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Sudesh Kumar Vs St. of Har. & ors.; (2005)
11 SCC 525
4. Jaswant Singh Vs St. of Pun. & ors.; (1991) 1
SCC 362
5. Wing Commander Rajesh Kumar Nagar Vs St.
of U.P.; 2021 SCC OnLine All 477
6. M.V. Bijlani Vs U.O.I. & ors.; (2006) 5 SCC 88
7. Himachal Pradesh St. Electricity Board Ltd. Vs
Mahesh Dahiya; (2017) 1 SCC 768
(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Sudeep Kumar, learned
counsel for the petitioner and learned
Standing Counsel for the State-respondent.

2. By means of the present writ
petition, the petitioner is challenging an
order dated 11.10.2000, passed by the
respondent No.2 (Annexures-1 and 2 to the
writ petition) with a further prayer for
issuance of necessary direction to the
respondent No.3 to accept the resignation
letter dated 30.11.1996 by a formal order
w.e.f. 30.11.1996. It is also prayed for
issuance of a writ, order or direction in the
alternative, in the nature of mandamus
commanding the respondents to treat the
petitioner's service terminated in pursuance
of order dated 14.1.1998, passed by the
respondent No.3.

3. Brief fact of the case is that the
petitioner was initially appointed on the
post of Senior Scientific Assistant in
temporary capacity on 27.10.1990. The
petitioner submitted an application to his
appointing authority i.e. Superintendent of
Police, Shahjahanpur for issuance of No
Objection Certificate. The said application
was forwarded by the Superintendent of
Police, Shahjahanpur on 16.7.1996.

4. The petitioner came to know of his
appointment in Consolidation Department,
where he was posted as Senior Scientific
Assistant, Field Unit, Shahjahanpur on
30.11.1996. The petitioner handed over his
entire charge to one of his subordinates on
the same day. The petitioner submitted his
resignation letter to the Superintendent of
Police, Shahjahanpur on 30.11.1996.

5. The respondent No.3 again
required the petitioner to resume his duties
on 20.6.1998. The petitioner expressed his
reluctance to join in Forensic Science
Laboratory. The respondent No.2 vide
order
dated
23.9.1999
required
the
petitioner to justify his resignation from
service. Thereafter, on 14.1.2000, the
respondent No.3 terminated the petitioner
from
service.
On
2.3.2000,
the
Superintendent of Police, Shahjahanpur
intimated the Director, Forensic Science
Laboratory, U.P. at Lucknow that there was
no dues lying against the petitioner, in his
office.

6. The respondent No.2 advised the
petitioner
by
letter
to
resign
from
consolidation department and to continue
under their subordination on 23.9.2000. On
9.8.2000, an order was passed by the High
Court, disposing of the writ petition of the
petitioner. The petitioner submitted a
representation to the respondent No.2 on
16.8.2000. Thereafter, on 24.8.2000, the
petitioner
submitted
a
supplementary
representation to the respondent No.2. The
respondent No.4 submitted his alleged
report (enquiry report) on 28.8.2000.

7. The respondent No.2 issued his
order dated 11.10.2000, dispensing with the
departmental enquiry against the petitioner
and dismissed him from service, under the
provisions of U.P. Government Servants
(Discipline and Appeal) Rules, 1999. The
representation filed by the petitioner was
9 All. Ajai Kumar Verma Vs. State of U.P. & Ors.
587
rejected by the respondent No.3 on
11.10.2000.

8. Assailing the impugned orders,
submission of learned counsel for the
petitioner is that there is gross violation of
principles of natural justice as Rule 6 (2) of
the U.P. Government Servants (Discipline
and Appeal) Rules, 1999 provides that in
case there are serious charges against the
employee then enquiry by issuing charge
sheet is to be initiated. Due to non issuance
of charge sheet and non holding of regular
enquiry, the impugned order vitiates in law
and is liable to be set aside.

9. Second submission of learned
counsel for the petitioner is that relying on
the
preliminary
enquiry
report,
the
impugned order has been passed. He
submits that law is very much settled that
in case the order has been passed on the
basis of preliminary enquiry, the order
cannot be sustained.

10. In support of his submission, he
placed
reliance
upon
the
following
judgments :-

(i) Union of India and another Vs.
Tulsiram Patel [(1985) 3 Supreme Court
Cases 398]

(ii) Hari Niwas Gupta Vs. State of
Bihar and another [(2020) 3 Supreme
Court Cases 153]

(iii) Sudesh Kumar Vs. State of
Haryana and others [(2005) 11 Supreme
Court Cases 525]

(iv) Jaswant Singh Vs. State of
Punjab and others [(1991) 1 Supreme
Court Cases 362]

(v)
Wing
Commander
Rajesh
Kumar Nagar Vs. State of U.P. [2021
SCC OnLine All 477]

(vi) M.V. Bijlani Vs. Union of India
and others [(2006) 5 Supreme Court
Cases 88]

(vii)
Himachal
Pradesh
State
Electricity Board Ltd. Vs. Mahesh
Dahiya [(2017) 1 Supreme Court Cases
768]

11. Next submission of learned
counsel for the petitioner is that once vide
Annexure-6, it was directed that in case of
non joining within the stipulated period,
service will be dispensed with, there was
no occasion to passe the impugned order.

12. On the other hand, learned
Standing
Counsel
submits
that
the
impugned order does not suffer from any
infirmity or illegality and is a just and valid
order. He further requested to adjourn the
case for production of record.

13. In the opinion of the Court, there
is no requirement of producing of record
and there is controversy or dispute in
regard to the documentary evidence, placed
by the petitioner.

14. After having heard the rival
contention of learned counsel for the
parties, I have perused the material on
record.

15. To resolve the controversy, Rule
7(ii) of the U.P. Government Servants
(Discipline and Appeal) Rules, 1999 is
being quoted below :-

"7. Procedure for imposing major
penalties. --

(ii)
The
facts
constituting
the
misconduct on which it is proposed to take
action shall be reduced in the form of
definite charge or charges to be called
588 INDIAN LAW REPORTS ALLAHABAD SERIES
charge-sheet. The charge-sheet shall be
approved by the Disciplinary Authority :

Provided that where the Appointing
Authority is Governor, the charge-sheet
may be approved by the Principal Secretary
or the Secretary, as the case may be, of the
concerned department."

16. On bare perusal of the record, it is
well established that the provision of Rule
7(ii) was not followed while initiating
disciplinary
proceeding
against
the
petitioner, therefore, there is no hesitation
to hold that the impugned order has been
passed in utter disregard of the provision
referred hereinabove.

17. On perusal of the impugned order,
it is also established that the impugned
order has been passed on the basis of
preliminary enquiry conducted against the
petitioner, without supplying the copy of
the enquiry report and charge sheet to him.

18. Relevant portion of the judgments
cited by the learned counsel for the
petitioner is being reproduced hereunder :-

(i) Union of India and another Vs.
Tulsiram Patel (Supra), paragraph 130

"130. The condition precedent for the
application of clause (b) is the satisfaction
of the disciplinary authority that "it is not
reasonably practicable to hold" the inquiry
contemplated by clause (2) of Article 311.
What is pertinent to note is that the words
used are "not reasonably practicable" and
not "impracticable". According to the
Oxford English Dictionary "practicable"
means "Capable of being put into practice,
carried
out
in
action,
effected,
accomplished, or done; feasible". Webster's
Third New International Dictionary defines
the word "practicable" inter alia as
meaning "possible to practice or perform :
capable of being put into practice, done or
accomplished : feasible". Further, the
words used are not "not practicable" but
"not" reasonably practicable". Webster's
Third New International Dictionary defines
the word "reasonably" as "in a reasonable
manner : to a fairly sufficient extent". Thus,
whether it was practicable to hold the
inquiry or not must be judged in the context
of whether it was reasonably practicable to
do so. It is not a total or absolute
impracticability which is required by clause
(b).

What is requisite is that the holding
of the inquiry is not practicable in the
opinion of a reasonable man taking a
reasonable
view
of
the
prevailing
situation. It is not possible to enumerate
the cases in which it would not be
reasonably
practicable
to
hold
the
inquiry, but some instances by way of
illustration may, however, be given. It
would not be reasonably practicable to
hold an inquiry where the government
servant, particularly through or together
with
his
associates,
so
terrorizes,
threatens or intimidate witnesses who are
going to given evidence against him with
fear of reprisal as to prevent them from
doing so or where the government servant
by himself or together with or through
other
threatens,
intimidates
and
terrorizes
the
officer
who
is
the
disciplinary authority or member of his
family so that he is afraid to hold the
inquiry or direct it to be held. It would
also not be reasonably practicable to
hold the inquiry where an atmosphere of
violence or of general indiscipline and
insubordination
prevails,
and
it
is
immaterial
whether
the
concerned
government servant is or is not a party to
bringing about such an atmosphere. In
this connection, we must bear in mind
9 All. Ajai Kumar Verma Vs. State of U.P. & Ors.
589
that numbers coerce and terrify while an
individual may not. The reasonable
practicability of holding an inquiry is a
matter of assessment to be made by the
disciplinary authority. Such authority is
generally on the spot and knows what is
happening. It is because the disciplinary
authority is the best judge of this that
clause(3) of Article 311 makes the
decision of the disciplinary authority on
this
question
final.
A
disciplinary
authority is not expected to dispense with
a
disciplinary
inquiry
lightly
or
arbitrarily or out of ulterior motives or
merely in order to avoid the holding of an
inquiry or because the Department's case
against the government servant is weak
and must fail. The finality given to the
decision of the disciplinary authority by
Article 311(3) is not binding upon the
court so far as its power of judicial
review is concerned and in such a case
the court will strike down the order
dispensing with the inquiry as also the
order imposing penalty. The case of Arjun
Chaubey v. Union of India and others,
[1984] 3 S.C.R. 302, is an instance in
point. In that case, the appellant was
working as a senior clerk in the office of
the Chief Commercial Superintendent,
Northern Railway, Varanasi. The Senior
Commercial Officer wrote a letter to the
appellant calling upon him to submit his
explanation with regard to twelve charges
of gross indiscipline mostly relating to
the
Deputy
Chief
Commercial
Superintendent. The appellant submitted
his explanation and on the very next day
the
Deputy
Chief
Commercial
Superintendent served a second notice on
the appellant saying that his explanation
was not convincing and that another
chance was being given to him to offer
his explanation with respect to those
charges. The appellant submitted his
further explanation but on the very next
day
the
Deputy
Chief
Commercial
Superintendent
passed
an
order
dismissing him on the ground that he was
not fit to be retained in service. This
Court struck down the order holding that
seven out of twelve charges related to the
conduct of the appellant with the Deputy
Chief Commercial Superintendent who
was the disciplinary authority and that if
an inquiry were to be held, the principal
witness for the Department would have
been the Deputy Chief Commercial
Superintendent himself, resulting in the
same person being the main accuser, the
chief witness and also the judge of the
matter."

(ii) Hari Niwas Gupta (Supra),
paragraphs- 10, 11, 18 and 19

"10. Clause (1) states that persons
employed in civil services or posts under
the Union or the States or members of the
all-India service shall not be dismissed,
removed or reduced in rank by an authority
subordinate to that by which he/she was
appointed. Clause (2) provides that such a
person could be dismissed or removed or
reduced in rank only after an inquiry in
which he has been informed of the charges
against him and after being afforded a
reasonable opportunity of being heard in
respect of those charges. The second
proviso incorporates exceptions when the
need for holding an inquiry under clause
(2) can be dispensed with. Clause (b) of the
second proviso to Article 311(2) can be
invoked to impose a punishment of
dismissal, removal, or reduction in rank on
the satisfaction, to be recorded in writing,
that it is not reasonably practicable to
conduct an inquiry before imposing the
punishment. This Court in Jaswant Singh v.
State of Punjab,1 relying on an earlier
decision in Union of India v. Tulsiram
590 INDIAN LAW REPORTS ALLAHABAD SERIES
Patel,2 has affirmatively held that the
obligation of the competent authority to
record

reasons when passing an order under
clause (b) to the second proviso to Article
311(2) is mandatory, and it was inter alia
observed:

"5.
It
was
incumbent
on
the
respondents to disclose to the court the
material in existence at the date of the
passing of the impugned order in support of
the subjective satisfaction recorded by
respondent 3 in the impugned order. Clause
(b) of the second proviso to Article 311(2)
can be invoked only when the authority is
satisfied from the material placed before
him that it is not reasonably practicable to
hold a departmental enquiry. This is clear
from the following observation at page 270
of Tulsiram case: (SCC p. 504, para 130) A
disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly
or arbitrarily or out of ulterior motives or
merely in order to avoid the holding of an
inquiry or because the departments case
against the government servant is weak and
must fail."
11. In the present matter, the Division
Bench vide the impugned judgment has as a
fact found that the High Court had failed to
record satisfaction in writing for dispensing
with an inquiry before arriving at its
decision to dismiss the judicial officers. For
this reason, the order of dismissal dated
12th February 2014 passed by the
Governor of the State of Bihar under clause
(b) of the second proviso to Article 311(2)
was quashed and set aside. Consequently,
the judicial officers were to be reinstated in
service. This is what has been observed in
the quoted portion of the final directions by
the Division Bench, which refers to the fact
that two (sic-one) judicial officers had
attained the age of superannuation during
the pendency of the writ petitions and,
therefore, they would be deemed to be
continuing in service for the limited
purpose of enabling the disciplinary
proceedings
to
continue.
The
other
officer(s) would be deemed to be under
suspension. The High Court was required
to take a decision within two months and if
no decision was taken, the proceedings
would lapse and the judicial officers would
be entitled to all consequential benefits as
if the proceedings had been set aside in
entirety. It was directed that the judicial
officer(s) who continued to be in service,
would be paid subsistence allowance, and
the retired would be paid provisional
pension to the extent of 25% forthwith.

18. The observations in our opinion
are being misread as the aforequoted
portion refers to the legal position that
normally departmental inquiry should be
held. It also refers to the scenario where a
departmental inquiry cannot be conducted
that is, when conducting of departmental
enquiry was turning out to be a difficult
task, in which case a decision could have
been taken to dispense with the enquiry; by
recording specific reasons. It is observed
that the principles laid down in Tulsiram
Patel (supra) and Tarsem Singh (supra)
have to be kept in mind. Appropriate in this
regard, would be a reference to the
following observations in Tulsiram Patel
(supra), which read:

"130. The condition precedent for the
application of clause (b) is the satisfaction
of the disciplinary authority that it is not
reasonably practicable to hold the inquiry
contemplated by clause (2) of Article 311.
What is pertinent to note is that the words
used are not reasonably practicable and
not impracticable. According to the Oxford
English Dictionary practicable means
Capable of being put into practice, carried
out in action, effected, accomplished, or
done;
feasible.
Websters
Third
New
9 All. Ajai Kumar Verma Vs. State of U.P. & Ors.
591
International Dictionary defines the word
practicable inter alia as meaning possible
to practice or perform: capable of being
put into practice, done or accomplished:
feasible. Further, the words used are not
not
practicable
but
not
reasonably
practicable.
Websters
Third
New
International Dictionary defines the word
reasonably as in a reasonable manner: to a
fairly sufficient extent. Thus, whether it was
practicable to hold the inquiry or not must
be judged in the context of whether it was
reasonably practicable to do so. It is not a
total or absolute impracticability which is
required by clause (b). What is requisite is
that the holding of the inquiry is not
practicable in the opinion of a reasonable
man taking a reasonable view of the
prevailing situation."
19. Thus, the authorities to invoke the
power under clause (b) to the second
proviso of Article 311(2) to dispense with a
departmental inquiry must record a finding
that such an inquiry cannot be conducted
and record specific reasons for the same. In
this case, the Division Bench had recorded
the contention of the respondent- High
Court as the disciplinary authority that it
would be impossible to assimilate, collect
and produce direct evidence and material
as the acts and misdeeds were in another
country. The Division Bench having found
that reasons had not been recorded for
dispensing with the inquiry, has neither
accepted nor rejected this contention of the
High Court. It will not be appropriate and
correct to interpret the decision of the
Division Bench by reading one or more
sentences of a paragraph in isolation. The
entire judgment has to be read to
understand the ratio and finding and the
observations must be read in the context in
which they have been made."

(iii)
Sudesh
Kumar
(Supra),
paragraphs- 5, 6 and 7

"5. It is now established principle of
law that an inquiry under Article 311(2) is
a rule and dispensing with the inquiry is an
exception. The authority dispensing with
the inquiry under Article 311(2) (b) must
satisfy for reasons to be recorded that it is
not reasonably practicable to hold an
inquiry. A reading of the termination order
by invoking Article 311(2)(b), as extracted
above, would clearly show that no reasons
whatsoever have been assigned as to why it
is not reasonably practicable to hold an
inquiry. The reasons disclosed in the
termination order are that the complainant
refused to name the accused out of fear of
harassment; the complainant, being a
foreign national, is likely to leave the
country and once he left the country, it may
not be reasonably practicable to bring him
to the inquiry. This is no ground for
dispensing with the inquiry. On the other
hand, it is not disputed that, by order dated
23-12-1999, the visa of the complainant
was extended up to 22-12-2000. Therefore,
there was no difficulty in securing the
presence of Mr. Kenichi Tanaka in the
inquiry.

6. A reasonable opportunity of hearing
in Article 311(2) of the Constitution would
include an opportunity to defend himself
and establish his innocence by crossexamining
the
prosecution
witnesses
produced against him and by examining the
defence witnesses in his favour, if any. This
he can do only if inquiry is held where he
has been informed of the charges levelled
against him. In the instant case, the
mandate
of
Article
311(2)
of
the
Constitution has been violated depriving
reasonable opportunity of being heard to
the appellant.

7. In this view of the matter, we are of
the view that the order terminating the
services of the appellant is not sustainable
in law. It is, accordingly, quashed and set
592 INDIAN LAW REPORTS ALLAHABAD SERIES
aside. However, the respondents are at
liberty, if so advised, to hold an inquiry
against the appellant by affording him a
reasonable opportunity of hearing and
thereafter pass any order as it may deem fit
and proper in accordance with law."

(iv)
Jaswant
Singh
(Supra),
paragraph-5

"5. "The impugned order of April 7,
1981 itself contains the reasons for
dispensing with the inquiry contemplated
by Article 311(2) of the Constitution.
Paragraph 3 of the said order, which we
have extracted earlier, gives two reasons in
support of the satisfaction that it was not
reasonably
practicable
to
hold
a
departmental enquiry against the appellant.
These are (i) the appellant has thrown
threats that he with the help of other police
employees will not allow holding of any
departmental enquiry against him and (ii)
he and his associates will not hesitate to
cause physical injury to the witnesses as
well as the enquiry officer. Now as stated
earlier after the two Revision Applications
were allowed on October 13, 1980. the
appellant had re-joined service as Head
Constable on March 5, 1981 but he was
immediately placed under suspension.
Thereafter, two show cause notices dated
April 4, 1981 were issued against him
calling upon him to reply thereto within 10
days after the receipt thereof. Before the
service of these notices the incident of
alleged attempt to commit suicide took
place on the morning of April 6, 1981 at
about 11.00 a.m. In that incident the
appellant sustained an injury on his right
arm with a knife. He was, therefore,
hospitalised and while he was in hospital
the two show cause notices were served on
him at (5 of 8) about 10.00 p.m. on April 6,
1981. Before the appellant could reply to
the said show cause notices the third
respondent passed the impugned order on
the very next day i.e. April 7, 1981. Now
the earlier departmental enquiries were
duly conducted against the appellant and
there is no allegation

that the department had found any
difficulty in examining witnesses in the said
inquiries. After the Revision Applications
were allowed the show cause notices were
(4 of 6) [CW-1737/2008] issued and 10
days time was given to the appellant to put
in his replies thereto. We, therefore,
enquired from the learned Counsel for the
respondents to point out what impelled
respondent No. 3 to take a decision that it
was necessary to forthwith terminate the
services of the appellant without holding an
inquiry as required by Article 311(2). The
learned Counsel for the respondents could
only point out Clause (iv)(a) of sub-para
29(A) of the counter which reads as under:

"The order dated 7.4.81 was passed as
the
petitioner's
activities
were
objectionable. He was instigating his fellow
police officials to cause indiscipline, show
insubordination and exhibit disloyalty,
spreading discontentment and hatred, etc.
and his retention in service was adjudged
harmful."

This is no more than a mere
reproduction of paragraph 3 of the
impugned order. Our attention was not
drawn to any material existing on the date
of the impugned order in support of the
allegation contained in paragraph 3
thereof that the appellant had thrown
threats that he and his companions will not
allow holding of any departmental enquiry
against him and that they would not
hesitate to cause physical injury to the
witnesses as well as the enquiry officer if
any such attempt was made. It was
incumbent on the respondents to disclose to
the Court the material in existence at the
date of the passing of the impugned order
in support of the subjective satisfaction
9 All. Ajai Kumar Verma Vs. State of U.P. & Ors.
593
recorded by respondent No. 3 in the
impugned order. Clause (b) of the second
proviso to Article 311(2) can be invoked
only when the authority is satisfied from the
material placed (6 of 8) before him that it is
not reasonably practicable to hold a
departmental enquiry. This is clear from
the following observation at p. 270 of Tulsi
Ram's case:

"A
disciplinary
authority
is
not
expected to dispense with a disciplinary
authority lightly or arbitrarily or out of
ulterior motives or merely in (5 of 6) [CW-
1737/2008] order to avoid the holding of
an inquiry or because the Department's
case against the government servant is
weak and must fail."

The decision to dispense with the
departmental enquiry cannot, therefore, be
rested solely on the ipse dixit of the
concerned authority. When the satisfaction
of the concerned authority is questioned in
a court of law, it is incumbent on those
who support the order to show that the
satisfaction is based on certain objective
facts and is not the outcome of the whim
or caprice of the concerned officer. In the
counter filed by the third respondent it is
contended that the appellant, instead of
replying to the show cause notices,
instigated his fellow police officials to
disobey the superiors . It is also said that
he threw threats to beat up the witnesses
and
the
Inquiry
Officer
if
any
departmental inquiry was held against
him. No particulars are given. Besides it is
difficult to understand how he could have
given threats, etc., when he was in
hospital. It is not shown on what material
the
third
respondent
came
to
the
conclusion that the appellant had thrown
threats as alleged in paragraph 3 of the
impugned order. On a close scrutiny of the
impugned order it seems the satisfaction
was based on the ground that he was
instigating his colleagues and was holding
meetings with other police officials with a
view
to
spreading
hatred
and
dissatisfaction towards his superiors. This
allegation
is based on his alleged
activities at Jullundur on April 3, 1981
reported by SHO/GRP, Jullundur. That
report is not forthcoming. It is no one's
contention
that
the
said SHO was
threatened. The third respondent's counter
also does not reveal if he had verified the
correctness of the information. To put it
tersely the subjective satisfaction recorded
in paragraph 3 of the impugned order is
not fortified by any independent material
to justify the dispensing with of the inquiry
envisaged by Article 311(2) of the (7 of 8)
Constitution. We are, therefore, of the
opinion that on this short ground alone the
impugned order cannot be sustained."

(v)
Wing
Commander
Rajesh
Kumar Nagar (Supra), paragraphs-53 to
58

"53. Once the decision is taken by the
authorities to institute regular disciplinary
proceedings
then
findings
in
the
preliminary enquiry report ordinarily is not
to be relied upon. In case such a report is
to be relied upon then the delinquent
employees has to be confronted with such
materials, and only after hearing their
version in the matter that such a report
could be relied upon. Any other course
followed would clearly be a violation of
principles of natural justice.

54. In the facts of the present case,
once the decision was taken to institute
regular disciplinary proceedings against
the petitioner and charge-sheet was issued,
the enquiry officer was expected to have
independently
examined
the
evidence
collected during the course of disciplinary
proceedings and return its finding as to
whether charges against the employees are
made out.
594 INDIAN LAW REPORTS ALLAHABAD SERIES

55. In the instant case, it appears that
the State Government is pre meditated and
malafide, which is substantiated by a
frequent change of the inquiry officers, who
could align with the wishes of the
authorities. The petitioner has not been
given proper opportunity to submit the
reply of the show cause notice as he has not
been supplied the relevant documents for
the preparation of the reply.

56. A recent decision of the Apex
Court in H.P. State Electricity Board Ltd.
Vs. Mahesh Dahiya, passed in Civil Appeal
No.10913 of 2016, has been pleased to
refer to and rely upon a previous decision
of the Apex Court in M.V. Bijlani Vs. Union
of India and others, (2006) 5 SCC 88 to
observe as under:-

"24. ...... On the scope of judicial
review, the Division Bench itself has
referred to judgment of this Court reported
in M.V. BIJLANI VERSUS UNION OF
INDIA AND OTHERS (2006) 5 SCC 88.
This Court, noticing the scope of judicial
review in context of disciplinary proceeding
made following observations in para 25: "It
is true that the jurisdiction of the court in
judicial review is limited. Disciplinary
proceedings, however, being quasi-criminal
in nature, there should be some evidence to
prove the charge. Although the charges in a
departmental proceeding are not required
to be proved like a criminal trial i.e.
beyond all reasonable doubt, we cannot
lose sight of the fact that the enquiry officer
performs a quasi-judicial function, who
upon analysing the documents must arrive
at a conclusion that there had been a
preponderance of probability to prove the
charges on the basis of materials on record.
While doing so, he cannot take into
consideration any irrelevant fact. He
cannot refuse to consider the relevant facts.
He cannot shift the burden of proof. He
cannot reject the relevant testimony of the
witnesses only on the basis of surmises and
conjectures. He cannot enquire into the
allegations with which the delinquent
officer had not been charged with."
25. The three Judge Bench of this Court in
B.C. CHATURVEDI VERSUS UNION OF
INDIA AND OTHERS 1995 (6) SCC 749
had noticed the scope of judicial review
with regard to disciplinary proceeding.
Following observations have been made in
paras 12 and 13: "12. Judicial review is not
an appeal from a decision but a review of
the manner in which the decision is made.
Power of judicial review is meant to ensure
that the individual receives fair treatment
and not to ensure that the conclusion which
the authority reaches is necessarily correct
in the eye of the court. When an inquiry is
conducted on charges of misconduct by a
public servant, the Court/Tribunal is
concerned to determine whether the inquiry
was held by a competent officer or whether
rules of natural justice are complied with.
Whether the findings or conclusions are
based on some evidence, the authority
entrusted with the power to hold inquiry
has jurisdiction, power and authority to
reach a finding of fact or conclusion. But
that finding must be based on some
evidence. Neither the technical rules of
Evidence Act nor of proof of fact or
evidence as defined therein, apply to
disciplinary
proceeding.
When
the
authority
accepts
that
evidence
and
conclusion receives support therefrom, the
disciplinary authority is entitled to hold
that the delinquent officer is guilty of the
charge. The Court/Tribunal in its power of
judicial review does not act as appellate
authority to re-appreciate the evidence and
to arrive at its own independent findings on
the evidence. The Court/Tribunal may
interfere where the authority held the
proceedings against the delinquent officer
in a manner inconsistent with the rules of
9 All. Ajai Kumar Verma Vs. State of U.P. & Ors.
595
natural justice or in violation of statutory
rules prescribing the mode of inquiry or
where the conclusion or finding reached by
the disciplinary authority is based on no
evidence. If the conclusion or finding be
such as no reasonable person would have
ever reached, the Court/Tribunal may
interfere with the conclusion or the finding,
and mould the relief so as to make it
appropriate to the facts of each case." "13.
The disciplinary

authority is the sole judge of facts.
Where appeal is presented, the appellate
authority has coextensive power to re-
appreciate the evidence or the nature of
punishment. In a disciplinary inquiry, the
strict proof of legal evidence and findings
on that evidence are not relevant. Adequacy
of evidence or reliability of evidence cannot
be permitted to be canvassed before the
Court/Tribunal. In Union of India V. H.C.
Goel this Court held at p. 728 that if the
conclusion, upon consideration of the
evidence reached by the disciplinary
authority, is perverse or suffers from patent
error on the face of the record or based on
no evidence at all, a writ of certiorari could
issued."
26. Both the learned Single Judge and the
Division Bench have heavily relied on the
fact that before forwarding the copy of the
report by letter dated 02.04.2008 the
Disciplinary Authority-cum-Whole Time
Members have already formed an opinion
on 25.02.2008 to punish the writ petitioner
with major penalty which is a clear
violation of principle of natural justice. We
are of the view that before making opinion
with regard to punishment which is to be
imposed on a delinquent, the delinquent
has to be given an opportunity to submit
the representation/ reply on the inquiry
report which finds a charge proved against
the delinquent. The opinion formed by the
Disciplinary Authority-cum-Whole Time
Members on 25.02.2008 was formed
without there being benefit of comments of
the writ petitioner on the inquiry report.
The writ petitioner in his representation to
the inquiry report is entitled to point out
any defect in the procedure, a defect of
substantial nature in appreciation of
evidence, any misleading of evidence both
oral or documentary. In his representation
any inputs and explanation given by the
delinquent
are
also
entitled
to
be
considered by the Disciplinary Authority
before it embarks with further proceedings
as per statutory rules. We are, thus, of the
view that there was violation of principle of
natural justice at the level of Disciplinary
Authority when opinion was formed to
punish the writ petitioner with dismissal
without forwarding the inquiry report to the
delinquent
and
before
obtaining
his
comments on the inquiry report. We are,
thus, of the view that the order of the High
Court setting aside the

punishment order as well as the
Appellate order has to be maintained.

27. In view of the above discussion, we
are of the view that present is the case
where the High Court while quashing the
punishment order as well as Appellate
order
ought
to
have
permitted
the
Disciplinary Authority to have proceeded
with the inquiry from the stage in which
fault was noticed i.e. the Stage under Rule
15 of Rules. We are conscious that
sufficient time has elapsed during the
pendency of the writ petition before learned
Single Judge, Division Bench and before
this Court, however, in view of the interim
order
passed
by
this
Court
dated
31.08.2015 no further steps have been
taken regarding implementation of the
order of the High Court. The ends of justice
be served in disposing of this appeal by
fixing a time frame for completing the
proceeding from the stage of Rule 15.
596 INDIAN LAW REPORTS ALLAHABAD SERIES

28. We having found that principles of
natural justice have been violated after
submission of the inquiry report dated
29.12.2007 all proceedings taken by the
Disciplinary Authority after 29.12.2007
have to be set aside and the Disciplinary
Authority is to be directed to forward the
copy of the inquiry report in accordance
with Rule 15(2) of Rules 1965 and further
proceedings, if any, are to be taken
thereafter. "

57. In State of U.P. Vs. Shatrughan Lal
and Another, (1998) 6 SCC 651. The
relevant paragraphs of the judgment is
reproduced as under:-

"It has also been found that during the
course of the preliminary enquiry, a
number of witnesses were examined against
the respondent in his absence, and rightly
so, as the delinquents are not associated in
the preliminary enquiry, and thereafter the
charge sheet was drawn up. The copies of
those statements, though asked for by the
respondent, were not supplied to him. Since
there was a failure on the part of the
appellant in this regard too, the principles
of natural justice were violated and the
respondent was not afforded an effective
opportunity of hearing, particularly as the
appellant failed to establish that nonsupply of the copies of statements recorded
during preliminary enquiry had not caused
any prejudice
to
the
respondent
in
defending himself."

58. Reliance is also placed upon a
decision of this Court in Chandrika Yadav
Vs. State of Uttar Pradesh and others,
passed in Writ Petition No.55836 of 2005,
in which following observations have been
made:-