# Anil Kumar v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 674
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-10
- **Case number:** Writ-A No. 9511 of 2020
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-v-state-of-u-p-ors-45493
- **Pages:** 6

## Headnote

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
11, 12, 13-Disciplinary Enquiry - Alternative
remedy - Alternative remedy is not a bar to
entertain a writ petition where there has
been violation of principles of natural
justice. (Para 25)

An
appeal,
generally
speaking,
is
a
rehearing by a superior authority/Court
on both law and fact. In the instant case, the
petitioner has not challenged the enquiry report
in his objection against the second show-cause
notice on the ground of violation of the principle
of natural justice. Since petitioner is raising the
plea of violation of principles of natural justice
for the first time in the writ petition, and the
question whether the Enquiry Officer had fixed
any date, time and place for conducting the
enquiry is essentially a question of fact, this
issue can very well be raised by the petitioner in
appeal, which can be considered by the
appellate authority under Rule 12 of Rules, 1999
as it is empowered to consider all factual aspect
of the matter. (Para 26, 27)

It is apparent from the reading of Rules
11, 12 and 13 of Rules, 1999 that it
provides
a
complete
mechanism
to
disseminate justice if any injustice has
been caused by the disciplinary authority.
(Para 28)

Writ Petition dismissed. (E-4)

Precedent followed:

## Text

674 INDIAN LAW REPORTS ALLAHABAD SERIES
requirement
under
law
for
seeking
permission of Basic Shiksha Adhikari for
the purpose of re-marriage by an employee,
who has been appointed on compassionate
basis, I am of the opinion that the petitioner
has
unnecessarily
invoked
the
writ
jurisdiction of this Court.

8.

The
petition
as
such
is
misconceived and is dismissed.
----------
(2020)12ILR A674
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 9511 of 2020

Anil Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri M.D. Singh Shekhar, Sri Ram Dayal Tiwari,
Sri Vaibhav Goswami

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
11, 12, 13-Disciplinary Enquiry - Alternative
remedy - Alternative remedy is not a bar to
entertain a writ petition where there has
been violation of principles of natural
justice. (Para 25)

An
appeal,
generally
speaking,
is
a
rehearing by a superior authority/Court
on both law and fact. In the instant case, the
petitioner has not challenged the enquiry report
in his objection against the second show-cause
notice on the ground of violation of the principle
of natural justice. Since petitioner is raising the
plea of violation of principles of natural justice
for the first time in the writ petition, and the
question whether the Enquiry Officer had fixed
any date, time and place for conducting the
enquiry is essentially a question of fact, this
issue can very well be raised by the petitioner in
appeal, which can be considered by the
appellate authority under Rule 12 of Rules, 1999
as it is empowered to consider all factual aspect
of the matter. (Para 26, 27)

It is apparent from the reading of Rules
11, 12 and 13 of Rules, 1999 that it
provides
a
complete
mechanism
to
disseminate justice if any injustice has
been caused by the disciplinary authority.
(Para 28)

Writ Petition dismissed. (E-4)

Precedent followed:

1. Nivedita Sharma Vs Cellular Operators Assc.
of India & ors., (2011) 14 SCC 337 (Para 20)

2. Thansingh Nathmal & ors. Vs Superintendent of
Taxes, Dhubri & ors. s, AIR 1964 SC 1419 (Para 21)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri M.D. Singh Shekhar,
learned Senior Counsel assisted by Sri Ram
Dayal Tiwari, learned counsel for the
petitioner and learned Standing Counsel for
respondent nos.1 to 4.

2. The brief facts of the case are that
petitioner while working as Lekhpal was
suspended by Up-Ziladhikari, Bansgaon,
Gorakhpur by order dated 06.10.2018 in
contemplation of enquiry. The charge sheet
was issued on 24.01.2019 against the
petitioner. In the charge sheet, four charges
were levelled against the petitioner.

3. The main charge against the
petitioner was that he made wrongful
entries in respect of certain gatas in fasli
year 1424-1429F. Besides this, the other
charge against the petitioner was for
12 All. Anil Kumar Vs. State of U.P. & Ors.
675
causing loss to the State Government to the
tune of Rs.5 crores.

4. The Tehsildar, Sadar, Gorakhpur
was appointed as Enquiry Officer, who
conducted the enquiry and found all the
charges against the petitioner proved.
Thereafter, the Enquiry Officer submitted
its enquiry report to the Disciplinary
Authority on 12.07.2020.

5. The Disciplinary Authority/S.D.M.,
Bansgaon, Gorakhpur on 16.07.2020 issued
second
show-cause
notice
alongwith
enquiry report to the petitioner and granted
him one week time to submit an objection
against the enquiry report.

6. The petitioner on 22.07.2020
submitted objection against the enquiry
report
to
the
Disciplinary
Authority/S.D.M., Bansgaon, Gorakhpur.
The
Disciplinary
Authority/S.D.M.
Bansgaon, Gorakhpur found the charges
against
the
petitioner
proved,
and
consequently, he passed an order on
27.07.2020 dismissing the petitioner from
service, which is impugned in the present
petition.

7. Learned Standing Counsel has
raised a preliminary objection against the
maintainability of the writ petition as the
petitioner has the statutory remedy of
appeal under Rule 11 of U.P. Government
Servant (Discipline and Appeal) Rules,
1999 (hereinafter referred to as 'Rules,
1999') which provides that an appeal shall
lie to the next higher authority from an
order passed by the Disciplinary Authority.

8. To the preliminary objection of the
learned Standing Counsel, Sri M.D. Singh
Shekhar learned Senior Counsel for the
petitioner submits that present is a case
where impugned order has been passed in
violation of principles of natural justice
since the Enquiry Officer did not fix any
date, time and place for conducting the
enquiry, and further the Enquiry Officer did
not summon anyone to prove the reports
against the petitioner and opportunity of
cross-examination was not given to the
petitioner. In support of his contention, he
has placed reliance upon paragraph 21 of
the writ petition which is being extracted
hereinbelow:-

"That the Enquiry Officer submitted
the report dated 12.7.2020 without any oral
hearing and without fixing the date, time
and place to the petitioner for his defence.
The Enquiry Officer has not summoned
anyone to verify the report, as such
opportunity of cross examination has never
been given to the petitioner. True copy of
the enquiry report dated 12.7.2020, is
being filed herewith and marked as
Annexure-15 to the present writ petition."

9. Thus, he submits that alternative
remedy is not an absolute bar to entertain a
writ petition where impugned order has
been passed in violation of principles of
natural justice, and thus, the writ petition
against the impugned order is maintainable
and this Court may entertain the same.

10. I have considered the rival
submissions of the parties and perused the
record.

11. Before adverting to the merits of
the case, it would be relevant to refer
Rules, 11, 12 & 13 of Rules, 1999 which
are being extracted herein below:-

"11. Appeal. - (1) Except the orders
passed under these rules by the Governor,
the Government servant shall be entitled to
676 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal to the next higher authority from an
order passed by the disciplinary authority.

(2) The appeal shall be addressed and
submitted to the appellate authority. A
Government servant preferring an appeal
shall do so in his own name. The appeal
shall contain all material statements and
arguments relied upon by the appellant.

(3) The appeal shall not contain any
intemperate language. Any appeal, which
contains such language may be liable to be
summarily dismissed.

(4) The appeal shall be preferred
within
90
days
from
the
date
of
communication of impugned order. An
appeal preferred after the said period shall
be dismissed summarily.

12. Consideration of Appeals. - The
appellate authority shall pass such order as
mentioned in clauses (a) to (d) of Rule 13
of these rules, in the appeal as he thinks
proper after considering.

(a) Whether the facts on which the
order was based have been established;

(b) Whether the facts established
afford sufficient ground for taking action;
and

(c) Whether the penalty is excessive,
adequate or inadequate;

13. Revision. - Notwithstanding
anything contained in these rules, the
Government may of its own motion or on
the
representation
of
concerned
Government servant call for the record of
any
case
decided
by
an
authority
subordinate to it in the exercise of any
power conferred on such authority by these
rules; and

(a) confirm, modify or reverse the
order passed by such authority; or

(b) direct that a further inquiry be held
in the case, or

(c) reduce or enhance the penalty
imposed by the order; or

(d) make such other order in the case
as it may deem fit;"

12. Rule 11(1) of Rules, 1999
provides that except the orders passed by
the Governor, under these rules, an
employee can file an appeal to the next
higher authority from an order passed by
the disciplinary authority.

13. Rule 11 (2) of Rules, 1999
provides that appeal shall contain all
material statements and arguments.

14. Rule 11 (3) of Rules, 1999
provides that appeal may not contain any
intemperate language and if it contains
such language, the appeal may be liable to
be dismissed summarily.

15. Rule 11 (4) of Rules, 1999
provides limitation for filing the appeal is
90 days from the date of communication of
the order.

16. Rule 12 of Rules, 1999 provides
that the appellate authority is empowered to
pass such order as mentioned in clauses (a)
to (d) of Rule 13 of Rules, 1999. It also
provides elaborately how the appeal is to be
considered by the appellate authority.

17. Rule 13 of Rules, 1999 provides the
power of revision and also orders which could
be passed by the appellate authority under Rule
12 as well as revisional authority.

18. Reading of Rule 11,12 & 13 of
Rules 1999 makes it amply clear that
Rules,1999 provides the manner in which
the appeal is to be considered by the
appellate authority and what order can be
passed by the appellate authority.
12 All. Anil Kumar Vs. State of U.P. & Ors.
677

19. At this stage, it would be apt to
refer judgements of Apex Court wherein
Apex Court has held that when a statutory
forum is created by law for redressal of
grievance, a writ petition should not be
entertained ignoring the statutory provision.

20. In the case of Nivedita Sharma
Vs. Cellular Operators Association of India
and Others 2011 (14) SCC 337, against an
order passed by the State Commission
under the Consumer Protection Act, 1986,
the
respondent-Cellular
Operators
Association approached the High Court.
The High Court entertained the writ
petition and allowed it. Against the order of
High Court, an appeal was preferred by the
appellant- Nivedita Sharma before the
Apex Court. The Apex Court held that
there are certain exceptions where the High
Court can entertain a writ petition even if
an alternative remedy is provided, but it
should not be done as a matter of course
particularly when an effective alternative
remedy is provided. Paragraphs 15 & 16 of
the said judgement are being extracted
herein below:-

"15. In the judgments relied upon by
Shri Vaidyanathan, which, by and large,
reiterate the proposition laid down in
Baburam Prakash Chandra Maheshwari v.
Antarim Zila Parishad AIR 1969 SC 556, it
has been held that an alternative remedy is
not a bar to the entertaining of writ petition
filed for the enforcement of any of the
fundamental rights or where there has been
a violation of the principles of natural
justice or where the order under challenge
is wholly without jurisdiction or the vires of
the statute is under challenge.

16. It can, thus, be said that this Court
has recognized some exceptions to the rule
of
alternative
remedy.
However,
the
proposition
laid
down
in
Thansingh
Nathmal v. Superintendent of Taxes AIR
1964 SC 1419 and other similar judgments
that the High Court will not entertain a
petition
under
Article
226
of
the
Constitution if an effective alternative
remedy is available to the aggrieved person
or the statute under which the action
complained of has been taken itself
contains a mechanism for rederssal of
grievance still hold field."

21. In the case of Thansingh Nathmal
and Others Vs. Superintendent of Taxes,
Dhubri and Others AIR 1964 SC 1419 the
Apex Court has held that ordinarily, the
High Court should not entertain a petition
for a writ under Article 226 where the
petitioner has an equally efficacious
remedy. Paragraph 7 of the said judgement
is being extracted hereinbelow:-

"7.
Against
the
order
of
the
Commissioner an order for reference could
have been claimed if the appellants
satisfied the Commissioner or the High
Court that a question of law arose out of
the order. But the procedure provided by
the Act to invoke the jurisdiction of the
High Court was bypassed. The appellants
moved the High Court challenging the
competence of the Provincial Legislature to
extend the concept of sale, and invoked the
extra-ordinary jurisdiction of the High
Court under Art. 226 and sought to re-open
the decision of the taxing authorities on
questions of fact. The jurisdiction of the
High Court under Art. 226 of the
Constitution is couched in wide terms and
the exercise thereof is not subject to any
restrictions
except
the
territorial
restrictions which are expressly provided in
the Articles. But the exercise of the
jurisdiction is discretionary: it is not
exercised merely because it is lawful to do
so. The very amplitude of the jurisdiction
678 INDIAN LAW REPORTS ALLAHABAD SERIES
demands that it will ordinarily be exercised
subject to certain self-imposed limitations.
Resort to that jurisdiction is not intended as
an alternative remedy for relief which may
be obtained in a suit or other mode
prescribed by statute. Ordinarily the Court
will not entertain a petition for a writ under
Art. 226, where the petitioner has an
alternative remedy, which without being
unduly onerous, provides an equally
efficacious remedy. Again the High Court
does
not
generally
enter
upon
a
determination of questions which demand
an elaborate examination of evidence to
establish the right to enforce which the writ
is claimed. The High Court does not
therefore act as a court of appeal against
the decision of a court or tribunal, to
correct errors of fact, and does not by
assuming jurisdiction under Art. 226 trench
upon an alternative remedy provided by
statute for obtaining relief. Where it is open
to the aggrieved petitioner to move another
tribunal,
or
even
itself
in
another
jurisdiction for obtaining redress in the
manner provided by a statute, the High
Court
normally
will
not
permit
by
entertaining a petition under Art. 226 of the
Constitution the machinery created under
the statute to be bypassed, and will leave
the party applying to it to seek resort to the
machinery so set up."

22. Now, in the case in hand, the
argument of learned Counsel for the
petitioner that if there is breach of
principles of natural justice, the alternative
remedy is not an absolute bar to the
maintainability of the writ petition is being
tested on the anvil of the principles laid
down by the Apex Court in the aforesaid
cases.

23. In the instant case, the petitioner
has stated in paragraph 21 of the writ
petition that the Enquiry Officer conducted
the enquiry without fixing any date, time
and place for conducting the enquiry. A
bald assertion has been made in paragraph
21 of the petition regarding violation of
principles of natural justice. At this point, it
would be pertinent to refer to the objection
of the petitioner against the enquiry report
before the Disciplinary Authority, which is
appended as Annexure 17 to the writ
petition.

24. A perusal of the objection filed by
the petitioner to the second show-cause
notice dated 16.07.2020 reveals that
challenge to enquiry report was not laid by
the petitioner on the ground that Enquiry
Officer did not fix any date, time and place
for conducting the enquiry and Enquiry
Officer did not summon any witness to
verify the reports, and opportunity of crossexamination was not given to the petitioner.
This plea has been set up for the first time
in the writ petition. Further, no assertion
has been made in the writ petition as to
what prejudice was suffered by the
petitioner by the aforesaid act of enquiry
officer.

25. There is no quarrel to the
proposition of law that alternative remedy
is not a bar to entertain a writ petition
where there has been violation of principles
of natural justice.

26. However, it is also settled in law
that an appeal, generally speaking, is a
rehearing by a superior authority/court on
both law and fact. In the instant case, the
petitioner has not challenged the enquiry
report in his objection against the second
show-cause notice on the ground of
violation of the principle of natural justice.
Since petitioner is raising the plea of
violation of principles of natural justice for
12 All. Dr. Narendra Singh Sengar & Ors. Vs. State of U.P. & Ors.
679
the first time in the writ petition, and the
question whether the Enquiry Officer had
fixed any date, time and place for
conducting the enquiry is essentially a
question of fact, this issue can very well be
raised by the petitioner in appeal, which
can be considered by the appellate
authority under Rule12 of Rules, 1999 as it
is empowered to consider all factual aspect
of the matter.

27. It is further relevant to mention
that Appellate Authority is vested with the
powers to confirm, modify or reverse the
order passed by the disciplinary authority;
or it may direct that further inquiry be held
in the case; or it may reduce or enhance the
penalty imposed by the order; or it may
make such other order in the case as it may
deem fit.

28. Thus, it is apparent from the reading
of Rules 11, 12 & 13 of Rules, 1999 that it
provides a complete mechanism to disseminate
justice if any injustice has been caused by the
disciplinary authority, therefore, this Court finds
it appropriate to relegate the petitioner to the
remedy of appeal under the Rules, 1999. Hence,
the writ petition is not maintainable and
accordingly, dismissed on the ground of
alternative remedy.

29. However, in the interest of justice,
it is provided that if petitioner prefers any
appeal within a period of eight weeks from
today, the appellate authority shall consider
it on merits without entering into the
question of limitation.
----------
(2020)12ILR A679
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.12.2020

BEFORE
THE HON'BLE CHANDRA DHARI SINGH, J.
Service Single No. 14731 of 2020
connected with S.S. No. 14024 of 2020 and S.S.
No. 13197 of 2020

Dr. Narendra Singh Sengar & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Laltaprasad Misra, Prafulla Tiwari.

Counsel for the Respondents:
C.S.C.

A. Service Law - Cancellation of contractual
appointment - Inquiry - The State cannot
take away employment of the petitioners
who are not responsible for any irregularities
in the appointment without proper inquiry of
each appointment individually or appraisal of
performance of every employee individually.
Not approval of any Government Order by Cabinet,
cannot said to be a wrong committed by the
employee and therefore, the petitioners cannot
suffer
for
any
irregularities
committed
by
Government authorities. (Para 27, 29, 30)

In the present case, services of all the petitioners
have been cancelled and a decision for no further
renewal
of
any
contractual
employee
in
Homeopathic Colleges has been taken. It is clear
law that eligibility of any candidate is to be
reckoned not from his or her selection but in terms
of rules or advertisement for the respective post. It
is also settled law that authority publishing the
advertisement/notification or any GO represents to
the members of the public that it is bound by such
representation. Any complaint regarding an
appointment should be examined and the decision
be taken individually and not by a general order.
The appointment of the petitioners was made after
adopting the procedure prescribed in the statute
as well as the advertisement dated 15.12.2017
and if the appointment is cancelled by a general
order, without appointing teachers on regular basis
by UPPSC, then the students who are studying in
the said Homeopathic Colleges may also suffer
irreparably. (Para 29)

B. The contractual employees can only be
replaced by regularly selected persons - It