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

- **Citation:** (2020) 2 ILRA 1684
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Writ A No. 19346 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-kumar-v-state-of-u-p-ors-45209
- **Pages:** 6

## Headnote

C.S.C.

A. Disciplinary proceeding - procedure
established for conducting an enquiry
was not followed - evidences were not
recorded - inquiry report was submitted
based
on
the
charge
sheet
and
petitioner's explanation.

The law is settled with respect to the manner
in which the disciplinary proceedings are to be
undertaken in a matter involving major
punishment. After the issuance of charge sheet
and receipt of a reply, a date, time and venue
of the inquiry have to be fixed. On the
appointed
date
and
time,
whether
the
delinquent employee appears or not, it is for
the establishment to prove its case by
examining evidence in support of the charges.
Mostly, this kind of a charge cannot be
established, unless the establishment examines
and gets their oral evidence recorded. In
addition, if there are certain documentary
evidence on which the establishment whishes
to rely, they have to lead that evidence before
the inquiry officer through their presiding
officer. It is only after the establishment
discharge their onus on the charge that burden
shifts to the delinquent employee, to produce
evidence in support of his case, all of which
would be ultimately evaluated by the inquiry
officer to reach his conclusion, one way or the
other. (para 8)

B. Power of administrative authority - no
jurisdiction to revive the order quashed
by the High Court

An order quashed by any Court, Tribunal or
Judicial Authority can be revived by a
competent court of appellate jurisdiction,
empowered by law to hear and decide an
appeal
from
the
order
quashing
the
administrative
order.
No
administrative
authority is possessed of jurisdiction to revive
an order that has been quashed or set aside by
a Court of competent jurisdiction, while
determining a matter on remand by the Court.
To pass the same order afresh or reach the
same conclusions, on determining a matter
after remand by a Court setting aside the order
2 All. Anuj Kumar & State of U.P. & Ors.
1685
of an administrative authority is permissible.
But, that determination is to be expressed in a
fresh order to be made by the authority. (para
12)

Writ Petition Allowed.

List of cases cited

## Text

1684 INDIAN LAW REPORTS ALLAHABAD SERIES
reference to the date on which an order is
passed in compliance with a Court's
direction. Neither a Court's direction to
consider a representation issued without
examining the merits, nor a decision given
in compliance with such direction, will
extend the limitation, or erase the delay
and laches.

9. The petitioner is admittedly guilty
of undue delay and laches which has not
been explained at all. For granting relief
under Article 226 of the Constitution of
India, laches is an important factor
disentitling a litigant for any relief, as
discussed above.

10. Even otherwise, order of Tribunal
non suiting petitioner on merits also
cannot
be
said
to
be
faulty. The
circumstances in which, within six months
of his recruitment, petitioner was found
suffering from ailment of Schizophrenia,
we do not find that petitioner satisfies the
requirement of disability pension. Hence
we find no merit in writ petition.

11. Dismissed accordingly.
----------
(2020)02ILR A1684

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 19346 of 2019

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

Counsel for the Petitioner:
Sri Ram Asrey Yadav
Counsel for the Respondents:
C.S.C.

A. Disciplinary proceeding - procedure
established for conducting an enquiry
was not followed - evidences were not
recorded - inquiry report was submitted
based
on
the
charge
sheet
and
petitioner's explanation.

The law is settled with respect to the manner
in which the disciplinary proceedings are to be
undertaken in a matter involving major
punishment. After the issuance of charge sheet
and receipt of a reply, a date, time and venue
of the inquiry have to be fixed. On the
appointed
date
and
time,
whether
the
delinquent employee appears or not, it is for
the establishment to prove its case by
examining evidence in support of the charges.
Mostly, this kind of a charge cannot be
established, unless the establishment examines
and gets their oral evidence recorded. In
addition, if there are certain documentary
evidence on which the establishment whishes
to rely, they have to lead that evidence before
the inquiry officer through their presiding
officer. It is only after the establishment
discharge their onus on the charge that burden
shifts to the delinquent employee, to produce
evidence in support of his case, all of which
would be ultimately evaluated by the inquiry
officer to reach his conclusion, one way or the
other. (para 8)

B. Power of administrative authority - no
jurisdiction to revive the order quashed
by the High Court

An order quashed by any Court, Tribunal or
Judicial Authority can be revived by a
competent court of appellate jurisdiction,
empowered by law to hear and decide an
appeal
from
the
order
quashing
the
administrative
order.
No
administrative
authority is possessed of jurisdiction to revive
an order that has been quashed or set aside by
a Court of competent jurisdiction, while
determining a matter on remand by the Court.
To pass the same order afresh or reach the
same conclusions, on determining a matter
after remand by a Court setting aside the order
2 All. Anuj Kumar & State of U.P. & Ors.
1685
of an administrative authority is permissible.
But, that determination is to be expressed in a
fresh order to be made by the authority. (para
12)

Writ Petition Allowed.

List of cases cited

1. Chamoli District Co-operative Bank Ltd.
Through its Secy/Mahaprabandhak and anr
V. Raghunath Singh Rana and ors 2016(12)
SCC 204

2. State of U.P. and ors v. Saroj Kumar
Sinha 2010(2) SCC 772

3. State of U.P. v. Aditya Prasad Srivastava
and anr 2017(2) ADJ 554 (DB)(LB)

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Sri Ram Asrey Yadav,
learned counsel for the petitioner and
Dr. Amar Nath Singh, learned Standing
Counsel appearing on behalf of all the
respondents.

2. Pursuant to the order of this
Court dated 3rd December, 2019, Arun
Atri, the then District Panchayat Raj
Officer,
Shamli
(now
Additional
District Panchayat Raj Officer), Shamli
has appeared before the Court. He has
produced before the Court record of the
inquiry proceedings on the basis of
which
the
impugned
order
dated
28.09.2018 has been passed. By the said
order, the petitioner's services have
been terminated.

3. The facts giving rise to this
petition are that the petitioner was placed
under suspension pending inquiry by the
respondents. The petitioner is a Class IV
employee (Safaikarmi). Post suspension
and formal initiation of departmental
proceedings, a notice dated 24.03.2017
was served upon him and a final
opportunity was given to the petitioner to
submit his reply to the allegations that
were there against him. The petitioner
submitted his reply to this notice on 31st
March, 2017. The order of punishment
records that this reply was not found
satisfactory.
However,
instead
of
proceeding to conduct an inquiry, the
Inquiry Officer within the next three days
proceeded to submit an inquiry report on
3rd April, 2017 which formed basis of the
order of termination that was earlier
passed
against
the
petitioner
on
10.04.2017. The said order was challenged
before this Court in Writ-A No. 35939 of
2017. The ground of challenge, amongst
others, appears to be that there is
absolutely
no
consideration
of
the
petitioner's case in the order impugned and
even if the explanation submitted by the
petitioner was not accepted, the Inquiry
Officer was obliged to proceed in the
manner that a date for holding the inquiry
had to be fixed. Thereafter, opportunity of
producing evidence etc. ought to have
been afforded, but no such procedure has
been followed.

4. This Court proceeded to quash the
order of termination holding that it was a case
where after reply to the charge sheet was
submitted, no date, time or place was fixed
for holding the inquiry, no oral evidence was
adduced and the Inquiry Officer submitted a
report within three days of the petitioner filing
a reply. The petitioner's services were
terminated by the order impugned in the writ
petition, last mentioned. Accordingly, the
order dated 24th March, 2017 was quashed
with liberty to the respondents to conclude the
inquiry within a period of four months from
the presentation of a certified copy of the
order passed in that case.
1686 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Now, by the impugned order what
has happened is this. The order of this
Court appears to have been filed before the
respondents to do the proceedings all over
again. They were required to undertake an
inquiry in accordance with law afresh.
However, in purported compliance of the
order of this Court, it appears that notice
was
issued
on
20.06.2018
fixing
27.06.2018 at 10.00 a.m., requiring the
petitioner to appear in the office of the
District Panchayat Raj Officer, so that
further proceedings could be taken.

6. Dr. Amar Nath Singh, learned
Standing Counsel makes a statement on
instructions received that the records
having been placed before the Court, the
respondents do not propose to file a
counter affidavit.

7. The Court has perused the original
record. It appears that on the date fixed, an
explanation was filed by the petitioner to
the
charges
against
him. The
said
explanation was considered by the Inquiry
Officer/Assistant Development Officer,
Panchayat Block, Kandla, Shamli vide his
report dated 03.07.2018, who appears to
have perused the explanation submitted by
the petitioner on 27.06.2018, and on its
basis, held it to be unsatisfactory. Rather,
there is a finding recorded in the inquiry
report of the Assistant Block Development
Officer, where he has said that some
natives of the village have said that the
petitioner does not undertake his official
duties and undertakes private work, a fact
which has been verified by the former
District Panchayat Raj Officer, Shamli. It
is then remarked in the report that the
explanation submitted by the petitioner is
not satisfactory and one where the
petitioner has not come forward with any
firm evidence or has he appeared himself
in person. It has further been concluded
that during his period of posting at the
Gram Panchayat in question, he never
discharged his duties of a Sweeper,
himself. On the basis of the said report, the
impugned order has been passed where
quoting the said report, it has been
recorded as follows:

"अतः श्र अनुज कुमार, सेवा
समाि सफाईकमी को मा0 उच्च न्यायालय
इलाहाबाि द्वारा कनगमत ककये गये आिेिोों के
िम में एक अवसर पुनः प्रिान ककया गया।
कजसमें श्र अनुज कुमार, सेवा समाि
सफाईकमी द्वारा अपने बचाव में कोई िोस
साक्ष्य प्रस्तुत नह ों ककये गये एवों सहायक
कवकास अकधकार (पों0) कााँधला द्वारा अन्धन्तम
जााँच में उक्त िोि पाये गये। कजससे स्वतः
ह स्पष्ट होता है कक, श्र अनुज कुमार पुत्र श्र
सेवाराम (सेवा समाि), सफाईकमी, ग्राम
पोंचायत-बधुपुरा कवकास िण्ड-कैराना, जनपि-
िामल उच्चाकधकाररयोों के आिेिोों क
अवहेलना के आकि है तिा इन्हें िासक य
सेवा क कोई आवश्यकता नह ों है। अतः
इनके सेवा समान्धि के आिेि किनाोंक
10.04.2017 यिावत रहेगें।"

8. A reading of the impugned order
as well as the inquiry report shows that the
District Panchayat Raj Officer, as well as
the Inquiry Officer, do not seem to have
the slightest idea of how an inquiry is to be
undertaken
and
how
disciplinary
proceedings are to be disposed of,
particularly, in a matter relating to
imposition of a major penalty. In an
inquiry relating to a major penalty, the
procedure is now by far well settled. After
issue of a charge sheet and the receipt of a
reply, a date, time and venue of the inquiry
have to be fixed. On the appointed date
and time, whether the delinquent employee
2 All. Anuj Kumar & State of U.P. & Ors.
1687
appears or does not, it is for the
establishment to prove its case by
examining evidence in support of the
charges. Mostly, this kind of a charge
cannot
be
established,
unless
the
establishment examines witnesses and gets
their oral evidence recorded. In addition, if
there are certain documentary evidence on
which the establishment wishes to rely,
they have to lead that evidence before the
Inquiry Officer through their Presenting
Officer. It is only after the establishment
discharge their onus on the charges that
burden shifts to the delinquent employee,
to produce evidence in support of his case,
all of which would be ultimately evaluated
by the Inquiry Officer to reach his
conclusion, one way or the other.

9. In this connection, the law as to
the
manner
in
which
disciplinary
proceedings are to be undertaken in a
matter involving major punishment has
been laid down by the Hon'ble Supreme
Court in Chamoli District Co-operative
Bank
Ltd.
Through
its
Secretary/Mahaprabandhak
and
another vs. Raghunath Singh Rana and
others, 2016 (12) SCC 204, where in
paragraph 22 of the report, the following
principles have been culled out by their
Lordships:

22. From the propositions of law,
as enunciated by the Apex Court as noted
above, and the facts of the present case, we
arrive at the following conclusions:

22.1. After service of chargesheet
dated
16-1-1993
although
the
petitioner submitted his reply on 4-2-1993
but neither inquiry officer fixed any date
of oral inquiry nor any inquiry was held by
the inquiry officer.

22.2. Mandatory requirement of
a disciplinary inquiry i.e. is holding of an
inquiry when the charges are refuted and
serving the inquiry report to the delinquent
has been breached in the present case.

22.3. Respondent 1 employee
having not been given opportunity to
produce his witnesses in his defence and
having not been given an opportunity of
being heard in person, the statutory
provisions as enshrined in Regulation
85(i)(b), have been violated.

22.4. The disciplinary authority
issued show-cause notice dated 4-5-1993
to Respondent 1 employee without holding
of an inquiry and subsequent resolution by
disciplinary authority taken in the year
2000 without there being any further steps
is clearly unsustainable. The High Court
has rightly quashed the dismissal order by
giving liberty to the Bank to hold de novo
inquiry within a period of six months, if it
so desires.

22.5.The Bank shall be at liberty
to proceed with the disciplinary inquiry as
per directions of the High Court in para 1
of the judgment. The High Court has
already held that the petitioner shall be
deemed to be under suspension and shall
be
paid
suspension
allowance
in
accordance with the rules.

10. In State of U.P. and Ors. vs.
Saroj Kumar Sinha, 2010 (2) SCC 772,
it has been held by their Lordships of the
Supreme Court thus:

27. A bare perusal of the
aforesaid sub-rule shows that when the
respondent had failed to submit the
explanation to the charge-sheet it was
incumbent upon the inquiry officer to
fix a date for his appearance in the
inquiry. It is only in a case when the
government servant despite notice of the
date fixed failed to appear that the
inquiry officer can proceed with the
1688 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry
ex
parte.
Even
in
such
circumstances it is incumbent on the
inquiry officer to record the statement
of witnesses mentioned in the chargesheet. Since the government servant is
absent, he would clearly lose the benefit
of cross-examination of the witnesses.
But nonetheless in order to establish the
charges the Department is required to
produce the necessary evidence before
the inquiry officer. This is so as to avoid
the charge that the inquiry officer has
acted as a prosecutor as well as a judge.

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.

(Emphasis by Court)

11. The aforesaid position of law has
been succinctly laid down by a Division
Bench of this Court, sitting at Lucknow, in
State
of
U.P.
vs.
Aditya
Prasad
Srivastava and another, 2017 (2) ADJ
554 (DB)(LB) where in paragraph 17 of
the report it has been held:

17. It is trite law that the
departmental
proceedings
are
quasi
judicial proceedings. The Inquiry Officer
functions as quasi judicial officer. He is
not merely a representative of the
department. He has to act as an
independent and impartial officer to find
out the truth. The major punishment
awarded to an employee visit serious civil
consequences
and
as
such
the
departmental proceedings ought to be in
conformity with the principles of natural
justice. Even if, an employee prefers not
to participate in enquiry the department
has to establish the charge against the
eployee by adducing oral as well as
documentary evidence. In case charges
warrant major punishment then the
oral
evidence
by
producing
the
witnesses is necessary.

(Emphasis by Court)

12. In the present case nothing of the
kind has been done. The Inquiry Officer
has submitted his report by reading the
charge
sheet
and
the
petitioner's
explanation, with no evidence recorded.
On the basis of this inquiry report, the
impugned
order
has
been
passed
mechanically where it is said in rather
objectionable terms that the order of
termination of service earlier passed by the
District Panchayat Raj Officer stands
restored. Once the order of the District
Panchayat Raj Officer earlier passed, had
been quashed, there was no jurisdiction
with the District Panchayat Raj Officer to
revive an order that the High Court had
quashed. It is quite another matter that at
the conclusion of a valid inquiry, a fresh
order may be to the same effect, could
have been passed again. An order quashed
by this Court or any Court, Tribunal or
Judicial Authority can be revived by a
competent Court of appellate jurisdiction,
empowered by law to hear and decide an
appeal from the order quashing the
administrative order, like the one here,
made
in
exercise
of
disciplinary
2 All. Hridesh Kumar & Ors. Vs. State of U.P. & Ors.
1689
jurisdiction. No Administrative Authority
is possessed of jurisdiction to revive an
order that has been quashed or set aside by
a Court of competent jurisdiction, while
redetermining a matter on remand by the
Court. To pass the same order afresh or
reach
the
same
conclusions,
on
determining a matter after remand by a
Court setting aside the order of an
Administrative Authority is permissible.
But, that determination is to be expressed
in a fresh order to be made by the
Authority. Decidedly, an Administrative
Authority cannot revive an order earlier
made by it and quashed by a Court or
Judicial Authority.

13. The said issue apart, the first part
of the infirmity in the impugned order that
it is based upon proceedings where no
evidence on behalf of the establishment
has been recorded and the fact that the
establishment have not discharged their
burden on the charges, the entire edifice of
the impugned order is non existent.

14. In the result, this petition
succeeds and is allowed.

15. The impugned order dated
28.09.2018
passed
by
the
District
Panchayat Raj Officer, Shamli is hereby
quashed. The petitioner shall be reinstated
in service forthwith and shall be paid his
salary together with arrears. It will,
however, be open to the respondents to
proceed afresh from the stage the charge
sheet was issued to the petitioner in
accordance with law, if they so deem fit,
and pass fresh orders.

16. The personal presence of Arun
Atri, the then District Panchayat Raj
Officer, Shamli (now Additional District
Panchayat Raj Officer) is exempted.

17. The records produced by the
District Panchayat Raj Officer, Shamli are
ordered to be returned to him in original.
----------
(2020)02ILR A1689

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 19367 of 2018

Hridesh Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Abhishek Gupta, Sri Chandra Bhan
Gupta

Counsel for the Respondents:
C.S.C., Sri Ramendra Pratap Singh

A.
Service
Law
-
regularization
of
contract employees - Contract Labour
(Regulation and Abolition) Act, 1970 -
Section 10 - notification - Constitution of
India - Article 226 - Constitution Bench
judgment of the Apex Court in Steel
Authority of India Ltd. and others v.
National Union Waterfront Workers and
others - held - no right of absorption of
the contract labours - further enquiry
into question of fact cannot be made in
exercise of jurisdiction under Article 226
of Constitution of India - appropriate
forum
for regularization
of
contract
employees is the Industrial Adjudicator -
nature of enquiry warranted in the facts
of the present case falls within the
exclusive jurisdiction of the Industrial
Adjudicator
-
writ
petition
-
not
maintainable. (Para 16,17)

Petitioners' claim for regularization has been
rejected after returning a specific finding that
no
employer-employee
relationship
exists
between the petitioners and the authority and