# Ansari v. State of U.P. & Ors. (Writ Petition

- **Citation:** (2012) 3 ILRA 1153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-20
- **Case number:** Civil Misc. Writ Petition No. 14120 of 1988
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ansari-v-state-of-u-p-ors-writ-petition-42357
- **Pages:** 6

## Headnote

Sri C.B.Gupta
Sri J.A.Tiwari
Sri R.S.Shukla
SC

U.P. Co-operative Societies Employees
Service
Regulations,
1975-Regulation
85-Dismissal order-without holding oral
enquiry-unless
request
made
by
employee oral enquiry not necessaryheld-misconceived
when
major
punishment inflicted-oral enquiry mustorder quashed with direction to hold
enquiry within 6 month-if not concludedpetitioner entitled for all consequential
benefits.

Held: Para 14

The occasion to afford opportunity to the
delinquent
employee
contemplated
under
the
aforesaid
Regulation
at
different stages during the oral enquiry,
would arise only when an oral enquiry is
held. The Enquiry Officer is obliged to
give an opportunity to the delinquent
employee to participate in oral enquiry
and examine the witnesses of the
department. Even mere absence of reply
of charge sheet shall not result in
deeming in the charges proved. In the
present case the petitioner has clearly
denied charges. Therefore, non-holding
of oral enquiry, in view of this Court,
shall vitiate the entire proceedings.
Case law discussed:
1997 (1) LLJ 831; 2000 (1) U.P.L.B.E.C. 541;
2001 (2) UPLBEC 1475; Chandra Pal Singh Vs.
Managing
Director,
U.P.
Co-operative
Federation & Ors. (Special Appeal No.533 of
2004) decided on 12.10.2006; Salahuddin
Ansari Vs. State of U.P. & Ors. (Writ Petition
No.19481 of 2003 decided on 18.2.2008; Writ
Petition No.13553 of 2004 (Nirmal Singh Vs.
State of U.P. & Ors.) decided on 3.4.2007;
2007 (3) ESC 1533; writ petition No. 44002 of
2005, Shiv Shanker Saxena v. State of U.P.
and Ors. decided on 3.3.2006

## Text

3 All] Harihar Nath Shukla V. M.D., Uttar Pradesh Rajya Sahkari Bhumi Vikas Bank Ltd. & others
1153
also the decision of the Board for the
cancellation of the selection.

13. The writ petition is hereby
allowed.
The
resolution
of
the
respondent Board dated 3rd November
2008 and its approval dated 29.12.2008,
are hereby quashed. The respondents are
hereby issued a writ of mandamus to
grant appointment to the petitioners for
the post of Accounts Officer within a
period of three months. It is being made
clear that the appointments so made shall
be given effect prospectively.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 14120 of 1988

Harihar Nath Shukla

 ...Petitioner
Versus
Managing Director, Uttar Pradesh Rajya
Sahkari Bhumi vikas Bank Ltd. and
others

 ...Respondents

Counsel for the Petitioner:
Sri Pradeep Chandra
Sri R.S.Srivastava
Sri Vinod Sinha

Counsel for the Respondents:
Sri C.B.Gupta
Sri J.A.Tiwari
Sri R.S.Shukla
SC

U.P. Co-operative Societies Employees
Service
Regulations,
1975-Regulation
85-Dismissal order-without holding oral
enquiry-unless
request
made
by
employee oral enquiry not necessaryheld-misconceived
when
major
punishment inflicted-oral enquiry mustorder quashed with direction to hold
enquiry within 6 month-if not concludedpetitioner entitled for all consequential
benefits.

Held: Para 14

The occasion to afford opportunity to the
delinquent
employee
contemplated
under
the
aforesaid
Regulation
at
different stages during the oral enquiry,
would arise only when an oral enquiry is
held. The Enquiry Officer is obliged to
give an opportunity to the delinquent
employee to participate in oral enquiry
and examine the witnesses of the
department. Even mere absence of reply
of charge sheet shall not result in
deeming in the charges proved. In the
present case the petitioner has clearly
denied charges. Therefore, non-holding
of oral enquiry, in view of this Court,
shall vitiate the entire proceedings.
Case law discussed:
1997 (1) LLJ 831; 2000 (1) U.P.L.B.E.C. 541;
2001 (2) UPLBEC 1475; Chandra Pal Singh Vs.
Managing
Director,
U.P.
Co-operative
Federation & Ors. (Special Appeal No.533 of
2004) decided on 12.10.2006; Salahuddin
Ansari Vs. State of U.P. & Ors. (Writ Petition
No.19481 of 2003 decided on 18.2.2008; Writ
Petition No.13553 of 2004 (Nirmal Singh Vs.
State of U.P. & Ors.) decided on 3.4.2007;
2007 (3) ESC 1533; writ petition No. 44002 of
2005, Shiv Shanker Saxena v. State of U.P.
and Ors. decided on 3.3.2006

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Vinod Sinha and Sri
Mahesh Sharma, learned counsel for the
petitioner and Sri C.B.Gupta, learned
counsel for the respondent-Bank.

2. A major penalty of removal from
service has been imposed upon the
petitioner Harihar Nath Shukla, son of
Mahabir Shukla working as Field Officer in
U.P. Rajya Sahkari Bvhumi Vikas Bank
Ltd. (hereinafter referred to as "the Bank")
vide order dated 26.4.1988, passed by
1154 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Managing Director of the Bank, which has
given a cause of action to the petitioner to
approach this Court assailing the aforesaid
order on the ground that without conducting
any oral enquiry whatsoever, the impugned
order of major penalty has been passed and
therefore it is in violation of principles of
natural justice as also procedure prescribed
in Regulation 85 of U.P. Cooperative
Societies Employees Service Regulations,
1975 (hereinafter referred to as "1975
Regulations").

3. The petitioner was initially
appointed as Assistant Branch Accountant,
subsequently
promoted
as
Branch
Accountant in 1969 and then as Field
Officer on 22.2.1978. He was placed under
suspension on 26.8.1983 which followed a
charge sheet dated 20.9.1984 (Annexure 3
to the writ petition). Five charges were
levelled
against
the
petitioner.
One
R.K.Agarwal,
General
Manager
was
appointed Enquiry Officer who had issued
the aforesaid charge sheet. The petitioner
submitted a detailed reply (Annexure 4 to
the writ petition) denying all the charges
levelled against him. No oral enquiry in
accordance with the procedure prescribed in
Regulation 85 was held by the enquiry
officer and he straightaway submitted
inquiry report dated 22.11.1985. It appears
that the said enquiry report was submitted
by one Gopal Gupta, Regional Manager,
Jhansi and it was addressed to Sri
R.K.Agarwal,
General
Manager,
Headquarter, Lucknow. In the said report all
the five charges were held proved. Pursuant
thereto
a
show
cause
notice
dated
24/27.6.1986 was issued to the petitioner as
to why he should not be removed from
service. The petitioner by letter dated
11.7.1986 required the Managing Director
to make available copies of reports which
were relied on in the enquiry report to
enable him to submit an effective reply. The
said request was declined by letter dated
4.10.1986 issued by General Manager
(Administration).

4. The petitioner while reiterating the
necessity of requisite documents, submitted
representation/reply dated 24.10.1986 to the
show cause notice. Another reply was
submitted by him on 1.12.1986. The
petitioner, however, mentioned that he is
still awaiting the reports and documents
relied by enquiry officer, copies whereof
were not given to him and after receiving
the same would submit further reply. The
respondent no.1 thereafter passed the
impugned order of punishment of removal.

5. Sri Vinod Sinha, learned counsel
for the petitioner contended that the
impugned order is vitiated and nullity in law
for the reasons that before imposing penalty
of removal, enquiry officer did not conduct
any oral enquiry whatsoever and even the
documents relied by enquiry officer in his
report were not submitted or furnished to
the petitioner despite repeated requests and
it is another reason for vitiating the entire
proceedings.

6. My attention was drawn to the
averments made in paras 14 and 15 of the
writ petition and reply contained in paras 9
and 10 of the counter affidavit. The
petitioner's contention that oral enquiry was
not conducted has been replied very
vaguely in the counter affidavit.

7. This Court, after hearing Sri Vinod
Singh, learned counsel for the petitioner, on
18.9.2012 specifically required from Sri
C.B.Gupta, Advocate, appearing for the
respondent-Bank to tell clearly whether any
oral enquiry was ever conducted and if so,
place before the Court record, if any, to
3 All] Harihar Nath Shukla V. M.D., Uttar Pradesh Rajya Sahkari Bhumi Vikas Bank Ltd. & others
1155
show as to on what date the oral enquiry
was conducted and in what manner it was
conducted, if at all.

8. Sri C.B.Gupta sought adjournment
on 18th and 19th September, 2012 both but
on 20th September, 2012 categorically
stated that there is nothing on record to
show that any oral enquiry was ever held
against the petitioner. He, however, also
could not dispute that for the purpose of
disciplinary enquiry, Regulation 85 of 1975
Regulations would govern the proceedings
in hand.

9. Thus the respondents could not
show and place any material before this
Court that any oral enquiry at all was
conducted by the Enquiry Officer.

10. No doubt, Regulation 85 (1)(c) of
1975 Regulation provides that if no
explanation in respect of charge sheet is
received or the explanation submitted is
unsatisfactory, the competent authority may
award
the
appropriate
punishment
considered necessary, but the same would
be applicable where no Enquiry Officer has
been appointed and the charge sheet has
been issued by the disciplinary authority
itself or at a stage before appointing the
Enquiry Officer. In such a case, it would,
however,
be
incumbent
upon
the
disciplinary authority itself to take and
consider such evidence as available to prove
the charge and thereafter pass a reasoned
and speaking order. However, where an
Enquiry
Officer
is
appointed,
under
Regulation 85 (iv) of 1975 Regulation, he is
bound to conduct oral enquiry wherein the
employee would have a right to examine the
witnesses and contradict evidence, if any,
produced by the employer in such enquiry.
From the record this Court is satisfied that
the Enquiry Officer has submitted enquiry
report without holding any oral enquiry
whatsoever in which the employee would
have been given opportunity to disprove the
charge(s).

11. The learned counsel for the
respondents, however, sought to defend the
disciplinary proceedings on the ground that
under 1975 Regulation, unless the employee
requests for an opportunity, to be heard in
person, it was not necessary to hold oral
enquiry. In my view, where the major
punishment like dismissal or removal is
likely to be imposed, the Enquiry Officer is
bound to hold oral enquiry wherein first of
all the department must prove the charge
and thereafter the delinquent employee shall
have an opportunity to repel such evidence
by producing his evidence.

12. An oral enquiry would be
necessary even if the delinquent employee
has failed to submit reply to the charge
sheet. In State of U.P. & another Vs. T.P.
Lal Srivastava, 1997 (1) LLJ 831, the
Hon'ble Apex Court held that even if the
employee has failed to submit reply to the
charge sheet, it would not absolve the
Enquiry Officer from proceeding with the
oral enquiry and submit report as to whether
charge is proved or not. After recording of
evidence, he will find out whether the
charge is proved or not and submit report to
the disciplinary authority.

13. In Subhash Chandra Sharma
Vs. Managing Director & another, 2000
(1) U.P.L.B.E.C. 541, a Division Bench of
this Court considering the question as to
whether holding of an oral enquiry is
necessary or not, held that if no oral enquiry
is held, it amounts to denial of principles of
natural justice to the delinquent employee.
The aforesaid view was reiterated in
Subhash
Chandra
Sharma
Vs.
1156 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
U.P.Cooperative
Spinning
Mills
&
others, 2001 (2) UPLBEC 1475 and
Laturi Singh Vs. U.P. Public Service
Tribunal & others, Writ Petition No.
12939 of 2001, decided on 6th May, 2005.

14. The aforesaid exposition of law
makes it clear that the delinquent employee
has a right to defend himself at different
stages. When the charge sheet is served
upon him, he has right to submit his reply
and in case he does not submit reply, that
itself would not amount to admission of
guilt or that the charge stand proved. If the
allegations are serious and may result in
major penalty, the disciplinary authority
may appoint Enquiry Officer. Such Enquiry
Officer, thereafter would have to fix a date
for oral evidence. At this stage the
delinquent employee has a right to
participate in the oral enquiry, examine
witnesses, if produced by the department,
and after the evidence of the department is
completed, the delinquent employee may
produce evidence in his defence. During the
course of oral enquiry, the delinquent
employee has right to participate at every
stage and date and if there is any failure in
participation on one or more occasions, the
Enquiry
Officer
cannot
deny
him
participation from the subsequent stage. The
delinquent employee can participate at
subsequent other stage. The Enquiry
Officer, after completion of oral enquiry,
will submit its report after discussing the
entire material and if any charge is proved,
the disciplinary authority shall supply a
copy of the enquiry report to the delinquent
employee and he would again have a right
to submit reply to the enquiry report. This
procedure is further fortified from the
scheme of Regulation 85 (1), which
provides that the delinquent employee shall
be served with a charge sheet and shall be
given opportunity to submit explanation
within a reasonable time, which shall not be
less than 15 days. Regulation 85 (1)(b)
thereafter provides that the delinquent
employee can produce evidence in defence
and cross-examine the witnesses, if any, and
also to be given opportunity for further
being heard in person, if he so desires. The
occasion to afford opportunity to the
delinquent employee contemplated under
the aforesaid Regulation at different stages
during the oral enquiry, would arise only
when an oral enquiry is held. The Enquiry
Officer is obliged to give an opportunity to
the delinquent employee to participate in
oral enquiry and examine the witnesses of
the department. Even mere absence of reply
of charge sheet shall not result in deeming
in the charges proved. In the present case
the petitioner has clearly denied charges.
Therefore, non-holding of oral enquiry, in
view of this Court, shall vitiate the entire
proceedings.

15. The above view has been
reiterated by this Court in Chandra Pal
Singh Vs. Managing Director, U.P. Cooperative Federation & Ors. (Special
Appeal No.533 of 2004) decided on
12.10.2006, Salahuddin Ansari Vs. State
of U.P. & Ors. (Writ Petition No.19481 of
2003 decided on 18.2.2008 and Writ
Petition No.13553 of 2004 (Nirmal Singh
Vs. State of U.P. & Ors.) decided on
3.4.2007. The Division Bench in Chandra
Pal Singh (supra) after referring to the
earlier judgments in State of U.P. Vs.
T.P.Lal Srivastava (supra) and Subhash
Chandra Sharma (supra) said:

"In our view, where the major
punishment like dismissal or removal is
likely to be imposed, the Enquiry Officer is
bound to hold oral enquiry wherein first of
all the department must prove the charge
and thereafter the delinquent employee
3 All] Harihar Nath Shukla V. M.D., Uttar Pradesh Rajya Sahkari Bhumi Vikas Bank Ltd. & others
1157
shall have an opportunity to repel such
evidence by producing his evidence."

16. In view of the above exposition of
law, the impugned order of removal dated
26.4.1988 cannot sustain.

17. The question now arise as to what
relief should be granted to the petitioner
after 24 years. Whether as a result of setting
aside of impugned order of removal, he is
automatically
entitled
for
entire
consequential benefits like reinstatement
and full backwages or the relief should be
moulded differently.

18. It cannot be disputed that charges
levelled against the petitioner, if correct and
proved, are serious and may entail a major
penalty. However, on the contrary, it is also
evident that petitioner by now has crossed
the age of superannuation and therefore, at
this stage, punishment of dismissal and
removal is improbable. But that would not
mitigate the problem. Still if the charges are
proved,
an
appropriate
punishment,
whatever permissible in law, can be
imposed. In this regard I find some
assistance from a Division Bench judgment
of this Court in General Manager,
National Thermal Power Corporation
Ltd. Vs. Gurucharan Singh, 2007(3) ESC
1533, where issue no.4 relates to similar
controversy
and
while
adjudicating
thereupon, the Court refers to various
decision of Apex Court and this Court and
said as under:

"21. ...In Managing Director, ECIL v.
B. Karunakaran JT 1993(6) SC 1 :(1993)
4 SCC 727 it was held that the question
whether an employee would be entitled for
back wages and other benefits from the date
of his dismissal to the date of his
reinstatement should be left to be decided
by
the
departmental
authorities
in
accordance with Rules and in the light of
the culmination of the proceedings and their
outcome.

22. In V.J. Alexander (supra) while
setting aside the order of dismissal on the
ground of denial of adequate opportunity,
the Court in para 16 held as under:

"On a conspectus of the decisions
aforestated, we veer around the view that in
cases where order of dismissal or removal
of a delinquent employee is interfered with
on the ground of some procedural lacuna or
defect in the domestic enquiry and it is not
examined independently by the Court
whether the charges against the delinquent
employee are established on the material on
record which exercise is impermissible in
Court's certiorari jurisdiction under Article
226 of the Constitution except, perhaps,
where such exercise is considered by the
Court convenient and feasible on admitted
facts brought before it, the Court should
demolish the order of removal or dismissal
passed by the departmental authority and
remit the matter to the disciplinary
authority to follow the procedure from the
stage at which fault was committed and take
action according to law. Pending such
enquiry delinquent employee must be
deemed to be under suspension entitled to
such subsistence allowance as may be
admissible subject, of course, to the
fulfilment of the pre-requisite conditions, if
any, laid down in the relevant Service
Rules/Regulations/Executive
Orders.
In
cases
where
the
Court
finds
on
consideration of the material on record,
that the charges levelled against the
delinquent employee are not sustainable
and he is entitled to be exonerated then in
that event, notwithstanding the delay that
may have taken place, it may direct
1158 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
reinstatement
of
the
employee
with
consequential benefits unless the case falls
within any exceptional category and the
Court finds that the reinstatement of
delinquent employee would be prejudicial
to the larger interest of the establishment."

23. In Banaras Hindu University,
Varanasi and Ors. v. J.N. Tripathi (supra)
it was held that " an order for payment of
full back wages is not to be passed as a
matter of course in every case in which the
order of dismissal is set aside or quashed by
the High Court."

24. Same is the view taken in writ
petition No. 44002 of 2005, Shiv Shanker
Saxena v. State of U.P. and Ors. decided on
3.3.2006. Thus, we are also of the view that
the Hon'ble Single Judge instead of directing
for reinstatement of the petitioner with
entitlement of entire arrears of salary, ought
to have directed that during the course of
disciplinary inquiry the petitioner/employee
shall be treated under suspension and paid
his subsistence allowance. Further for the
period, he had been wrongly dismissed and
remained out of job for that period also he
should be paid subsistence allowance. The
entitlement of the petitioner for full wages
shall depend on the outcome of the inquiry
whereafter disciplinary authority shall pass
appropriate orders in terms of the relevant
Standing Orders and law."

19. In the result, the writ petition is
allowed. The impugned order of dismissal
dated 26.4.1988 (Annexure 11 to the writ
petition) is set aside. The respondents are at
liberty to proceed afresh after the stage of
receiving reply of charge sheet from the
petitioner and after holding an enquiry
under Regulation 85 and shall pass a fresh
order within six months from the date of
production of a certified copy of this order.

20. In case the above procedure is
followed, petitioner's entitlement for arrears
of salary and other consequential benefits
would follow the final order passed by
respondents-competent authority. In case
the respondents failed to follow the
procedure, as directed above, and do not
pass a final order within time prescribed
above, the petitioner shall be entitled for all
consequential benefits, as are permissible in
law, under relevant rules and regulations
etc.

21. The petitioner shall also entitled to
cost, which I quantify to Rs.10,000/-
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 19063 of 1999

M/S Swadeshi Cotton Mills ...Petitioner
Versus
Labour Court,(II) U.P. Kanpur & Others

 ...Respondents

Counsel for the Petitioner:
Sri Devendra Pratap
Sri Siddharth.Singh

Counsel for the Respondents:
C.S.C.
Sri N.P. Singh
Sri J.P. Gupta

U.P. Industrial Dispute Act, 1947-Labor
Court Award-challenged on grounds-no
back wages could be given in absence of
specific pleading regarding no gainfully
worked
elsewhere,
Secondly-non
applicability of the provisions of Section
17-B of Central Industrial Dispute Act-