# Arvind Kumar Pandey v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 62
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-23
- **Case number:** Writ A No. 1644 of 2024
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-pandey-v-state-of-u-p-ors-52261
- **Pages:** 6

## Headnote

C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya)

A. Service Law - UP Government Service
(Discipline and Appeal) Rules, 1999 -
Rules 7 & 9 - Disciplinary proceeding -
Punishment
of
withholding
two
increments permanently and award of
censure entry - Charge against petitioner
was that he, while acting as DIOS
cancelled the stopped order and thereby
permitted an Assistant teacher to be paid
salary - No date, time and place was fixed
and no opportunity of personal hearing
was given - Copy of the enquiry report
was also not served upon the petitioner -
Effect - Held, it is always incumbent upon
the enquiry officer to fix a date, time and
place
for
personal
hearing
to
the
delinquent employee and in case of
violation, the enquiry proceeding shall
7 All. Arvind Kumar Pandey Vs. State of U.P. & Ors.
63
vitiate
-
Whole
enquiry
proceeding,
including the final punishment order
vitiates in the eyes of law. (Para 9, 10 and
15)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

62 INDIAN LAW REPORTS ALLAHABAD SERIES
continuance of the employee. Even in case,
truthful declaration regarding concluded
trial has been made by the employee, still
the employer has the right to consider
antecedents and cannot be compelled to
appoint the candidate.

24. After considering the Mehar
Singh (supra), the Apex Court in Methu
Meda (supra) has held as under:-

 22. As discussed hereinabove, the
law is well settled. If a person is acquitted
giving him the benefit of doubt, from the
charge of an offence involving moral
turpitude or because the witnesses turned
hostile, it would not automatically entitle
him for the employment, that too in
disciplined force. The employer is having a
right to consider his candidature in terms
of the circulars issued by the Screening
Committee. The mere disclosure of the
offences alleged and the result of the trial
is not sufficient......."

25. In all the above cases, the
requirement of integrity and high standard
of conduct has been highly emphasized.
We find that learned Single Judge in the
impugned judgement has also elaborately
dealt with each and every aspect of the
issues involved, while affirming the order
dated 28.7.2023 passed by the respondent
no.3 by which the services of the petitioner
have been terminated. The impugned order
being just and proper, we are not inclined
to interfere with impugned order.

26. In an Intra-Court Special
Appeal,
no
interference
is
usually
warranted unless palpable infirmities or
perversities are noticed on a plain reading
of the impugned judgment and order. In the
facts and circumstances of the instant case,
on a plain reading of the impugned
judgment and order, we do not notice any
such palpable infirmity or perversity. As
such, we are not inclined to interfere with
the impugned judgment and order.

27. The appeal fails, and is,
accordingly, dismissed with no order as to
the costs.
----------
(2024) 7 ILRA 62
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 1644 of 2024

Arvind Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Pratap Singh

Counsel for the Respondents:
C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya)

A. Service Law - UP Government Service
(Discipline and Appeal) Rules, 1999 -
Rules 7 & 9 - Disciplinary proceeding -
Punishment
of
withholding
two
increments permanently and award of
censure entry - Charge against petitioner
was that he, while acting as DIOS
cancelled the stopped order and thereby
permitted an Assistant teacher to be paid
salary - No date, time and place was fixed
and no opportunity of personal hearing
was given - Copy of the enquiry report
was also not served upon the petitioner -
Effect - Held, it is always incumbent upon
the enquiry officer to fix a date, time and
place
for
personal
hearing
to
the
delinquent employee and in case of
violation, the enquiry proceeding shall
7 All. Arvind Kumar Pandey Vs. State of U.P. & Ors.
63
vitiate
-
Whole
enquiry
proceeding,
including the final punishment order
vitiates in the eyes of law. (Para 9, 10 and
15)

Writ petition allowed. (E-1)

List of Cases cited:

1. St. of U.P. & ors.Vs Saroj Kumar Sinha;
(2010) 2 SCC 772

2. Subhash Chandra Sharma Vs Managing
Director & anr.; 1999 SCC OnLine All 1331

3. Shafat Ullah Vs Commissioner, Varanasi &
ors.; 2002 SCC OnLine All 218

4. Sahngoo Ram Arya Vs Chief Secretary, St. of
U.P, Lucknow & ors.; 2002 SCC OnLine All 1566

5. Ambika Prasad Srivastava Vs St. Public
Services Tribunal & ors.; 2005 (4) L.L.N 84

6. Yog Narain Dubey Vs Managing Director &
ors.; 2011 SCC OnLine All 2414

7. Chamoli District Cooperative Bank Limited Vs
Raghunath Singh Rana & ors.; (2016) 12 SCC
204

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Ajay Pratap Singh,
learned counsel for the petitioner, Sri Ravi
Shankar Tiwari, learned counsel for the
opposite party no. 3 and Sri Vivek Shukla,
learned Additional Chief Standing Counsel
for the State.

2. By means of the present writ
petition the petitioner has assailed the
impugned order dated 19 September 2023
passed by opposite party no. 1, whereby,
the petitioner has been punished while
withholding two increments permanently
and further awarded censure entry and the
recovery of ₹1,06,661/- was also imposed
upon him. The approval order dated 4
August 2023 passed by the Public Service
Commission, opposite party no. 3 is also
under challenge.

3. It is the case of the petitioner
that the petitioner was initially appointed
on the post of District Basic Education
Officer and subsequently, was promoted as
Joint Director of Education and also held
the post of Incharge, Joint Director of
Education at Azamgarh Region, Azamgarh
with effect from 27 June 2008 to 16
October 2008 and 12 January 2009 to 19
June
2009.
Fact
remains
that
one
Tarkeshwar Rai who was appointed as
adhoc Principal and once the vacancy
arose, Sri Umesh Kumar Rai was appointed
on the said post of Assistant Teacher
(Physical Education) by the Committee of
Management and that was approved by the
then, District Inspector of Schools, Ballia
on 17 January 1991. Later on, against the
requisition sent to the UP Secondary
Education Service Selection Board, one
Kushmakar Mishra joined on the post of
Assistant Teacher (Physical Education) in
the institution in question on 6 January
2004, but on place of ceasing the
continuance of Umesh Kumar Rai on the
post
of
Assistant
Teacher
(Physical
Education), he was allowed to continue and
the
salary
was
also
being
paid.
Subsequently, on 18.10.2007, the District
Inspector of School stopped the salary, but,
just after four days, it was again released.
Thereafter, on 29 September 2008 his
salary was stopped, but on 13 October 2008
Joint Director Education cancelled the
order dated 29 September 2008 and called
report from the District Inspector of
Schools regarding the status of appointment
of
Umesh
Kumar
Rai,
but
despite
submitting any report, the District Inspector
of Schools, Ballia, neither submitted the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
report nor stopped the salary and the salary
was being paid to Umesh Kumar Rai, up to
the year 2011.

4. Charges against the petitioner is
that the petitioner cancelled the stopped
order dated 29 September 2008, on 13
October 2008 and by virtue of the said
order, Umesh Kumar Rai was being paid
salary and therefore, the present petitioner
is accountable for unlawful payment of
salary to Umesh Kumar Rai.

5. The ground of challenge to the
impugned orders is of two folds; one that
the petitioner after passing the order on 13
October 2008 while calling a report from
the
District
Inspector
of
Schools,
transferred on 16 October 2008, and
therefore, it was incumbent upon the then
District Inspector of Schools, Ballia to take
further course of action or to submit a
report to the Joint Director of Education,
but he failed to do so for the reasons best
known to him and therefore, no liability
can be fasten upon the present petitioner.
Further submission is that, enquiry report
of the subsequent order of approval as well
as the punishment order dated 19
September
2023
are
arbitrary
and
unlawful as the enquiry officer is
appointed on 13 October 2017 and on the
same day, the chargesheet was issued and
without affording any opportunity of
hearing and without fixing date, time and
place, the enquiry officer submitted the
report on 19 December 2017. Further
contention is that the averments made in
paragraph 20, 21 and 23, have not been
denied in the counter affidavit and
therefore, the whole enquiry proceeding
vitiates in the eyes of law and the
punishment order itself is also against the
settled proposition of law and suffers
from illegality and infirmity.
6. On the other hand learned
counsel appearing for the State has opposed
the contention aforesaid and submitted that
it is an admitted fact on behest of the
petitioner, he was working as Joint Director
of Education on 27 June 2008 to 16
October 2008, and the order dated 13
October 2008 was passed by the present
petitioner, wherein, the order of the District
Inspector of Schools dated 29 September
2008, by which the salary of Umesh Kumar
Rai was stopped had been cancelled and a
result, thereof, Mr Rai was unlawfully
receiving payment of salary till 2011. He
added that there was no occasion to the
petitioner to cancel the order of the District
Inspector of Schools dated 29 September
2008, unless the reports are received and
the petitioner reaches to the conclusion that
there is any ground to interfere. He also
submits that the charge-sheet, enquiry
report and the final punishment order do
not suffer any illegality as after the
appointment of the enquiry officer, he has
framed the charges and after due approval,
the same was served upom the petitioner
and the enquiry report was submitted
before the disciplinary authority. Further,
the disciplinary authority on the basis of the
enquiry report has passed the final
punishment order coupled with the fact that
the
approval
from
Public
Service
Commission was also accorded. Therefore,
the submission of the counsel for opposite
parties is that there is no merit in the writ
petition.

7. Having heard the learner
counsel for the parties and after perusal of
the material placed on record, it transpires
that the charges against the petitioner was
that he unlawfully passed the order dated
30 October 2008, while cancelling the
order of District Inspector of Schools,
while favouring Mr. Umesh Kumar Rai.
7 All. Arvind Kumar Pandey Vs. State of U.P. & Ors.
65
The petitioner was holding the charge of
Joint Director of Education at Azamgarh
Region,
Azamgarh
with
effect
from
27.06.2008 to 16.10.2008. In the meantime,
the payment of salary to Umesh Kumar Rai
was stopped by an order dated 29
September 2008 by the District Inspector of
Schools, as a regular selected candidate
appointed by the UP Secondary Education
Service Selection Board had joinded,
whereafter, a report was called from the
District Inspector of Schools by the
petitioner and after three days he was
transferred and it seems that he could not
further look into the matter.

8. This court has also taken the
note of the fact that the chargesheet was
issued by the enquiry officer on 13 October
2017, and the enquiry report is submitted
on 19 December 2017. From perusal of the
enquiry report, it transpires that no date,
time and place was fixed and even
opportunity of personal hearing was not
accorded. In paragraph 23 of the petition,q
it has specifically been stated that the
enquiry report has never been served to the
petitioner, wherein, in reply to the same, in
the counter affidavit in paragraph 19, it has
been stated that the 'same needs no
comments', which amounts to admission
on the part of the State. Further in
paragraph 17 and 18 of the supplementary
affidavit filed in support of the petition, it
has been stated that no proper opportunity
of hearing was ever accorded to the
petitioner and at the same time, it has also
been stated that the provisions of Rule 7
and Rule 9 of the UP Government Service
(Discipline
and
Appeal)
Rules
1999
(hereinafter referred as 'Rules 1999') has
also been violated but this fact has not been
rebutted by the opposite parties. Since, the
petitioner is a government servant and
therefore, the Rules 1999 would prevail in
the present matter. The relevant extract of
the 'Rules 1999' are reproduced here in
under :-

 "(vii)
Where
the
charged
Government servant denies the charges, the
Inquiry Officer shall proceed to call the
witnesses proposed in the charge-sheet and
record their oral evidence in presence of
the charged Government servant who shall
be given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call and
record the oral evidence which the charged
Government servant desired in his written
statement to be produced in his defence :

Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.

(viii) The Inquiry Officer may
summon any witness to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production of
Documents) Act, 1976.

(ix) The Inquiry Officer may ask
any question he pleases, at any time of any
witness or from person charged with a view
to discover the truth or to obtain proper
proof of facts relevant to charges.

(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding inspite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer shall proceed with
the inquiry ex parte. In such a case the
Inquiry Officer shall record the statement
of witnesses mentioned in the charge-sheet
in absence of the charged Government
servant."
66 INDIAN LAW REPORTS ALLAHABAD SERIES
9. The aforesaid rules provides that
the opportunity of hearing including
opportunity of personal hearing shall be
accorded to the delinquent employee, but in
the present matter, after serving the
chargesheet, no date, time and place is
fixed and opportunity of personal hearing
has not been given and further, admittedly,
copy of the enquiry report was also not
served upon the petitioner, which is also
against the settled proposition of law.

10. It has long been settled that it
is always incumbent upon the enquiry
officer to fix a date, time and place for
personal
hearing
to
the
delinquent
employee and in case of violation, the
enquiry proceeding shall vitiate.

11. The abovesaid principal is
reiterated in the case of State of U.P. and
Others Vs. Saroj Kumar Sinha, (2010) 2
SCC 772. Paragraph 25 and 26 of the
judgement are quoted hereinunder:-

 "25. A bare perusal of the
aforesaid charges shows that the three
charges
were
based
on
official
documents/official
communications.
We
have earlier noticed the relentless efforts
made by the respondent to secure copies of
the documents, which was sought to be
relied upon, to prove the charges. These
were denied by the Department in flagrant
disregard of the mandate of Rule 7 sub-rule
(v). Therefore the inquiry proceedings are
clearly vitiated having been held in breach
of the mandatory sub-rule (v) of Rule 7 of
the 1999 Rules.

26. The first inquiry report is
vitiated also on the ground that the inquiry
officers failed to fix any date for the
appearance of the respondent to answer the
charges. Rule 7(x) clearly provides as
under:

"7.
(x)
Where
the
charged
government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding in spite of the service of the
notice on him or having knowledge of the
date, the inquiry officer shall proceed with
the inquiry ex parte. In such a case the
inquiry officer shall record the statement of
witnesses mentioned in the charge-sheet in
absence
of
the
charged
government
servant.""

12. In the judgement and order
rendered by the the coordinate Division
Bench of this Court, Smt. Karuna Jaiswal
Vs. State of U.P. (Writ Petition No. 1516
(SB) of 2003), it has been held as follows:-

 "In the instant case, no oral
enquiry was held, neither the petitioner
was given any notice to participate in any
oral enquiry by fixing date, time and
place for oral enquiry. It is only that the
Enquiry
Officer
after
noticing
that
despite sufficient time having been given
to the petitioner, she did not furnish her
reply to the charge-sheet, he proceeded
to
submit
ex-parte
report
without
conducting any oral enquiry by fixing
date, time and place for such an oral
enquiry.
Accordingly,
the
Enquiry
Officer, in this case, has violated the
aforesaid
principles,
which
clearly
vitiates the enquiry proceedings and any
punishment order based on such a
vitiated
enquiry,
is
clearly
not
sustainable."

13. In the above said matter, the
Division Bench is of the considered
opinion that the enquiry proceeding would
vitiate if no date, time or place is fixed by
issuing notice to the delinquent, for getting
recorded his statement, as an opportunity of
personal
hearing.
7 All. Mohd. Jamil Vs. Managing Director Kanpur Electricity Supply Co. (KESCO), Kanpur Nagar
 & Ors.
67
14. Apart from above, this Court is
also not unmindful to the judgement and
orders rendered in case of Subhash
Chandra Sharma Vs. Managing Director
and another (1999 SCC OnLine All
1331), Shafat Ullah Vs. Commissioner,
Varanasi and others (2002 SCC OnLine
All 218), Sahngoo Ram Arya Vs. Chief
Secretary, State of U.P, Lucknow and
others (2002 SCC OnLine All 1566),
Ambika Prasad Srivastava Vs. State
Public Services Tribunal and others
(2005 (4) L.L.N 84), Yog Narain Dubey
Vs. Managing Director and Others (2011
SCC OnLine All 2414) and Chamoli
District Cooperative Bank Limited Vs.
Raghunath Singh Rana and Others
((2016) 12 SCC 204).

15. In view of the aforesaid
submissions and discussions, this Court is
of considered opinion that the whole
enquiry proceeding, including the final
punishment order vitiates in the eyes of
law.

16. Consequently, the writ petition
is hereby allowed.

17. The impugned orders dated
19.09.2023 and 04.08.2023 are hereby
quashed.

18. Further, liberty is also
accorded to the State-respondent to hold a
fresh enquiry, if so desires.
----------
(2024) 7 ILRA 67
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 3143 of 2021

Mohd. Jamil ...Petitioner
Versus
Managing
Director
Kanpur
Electricity
Supply Co. (KESCO), Kanpur Nagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Ms. Usha Devi Singh

Counsel for the Respondents:
Sri Rajendra Kumar Misra, Sri Rajendra
Kumar Pandey, Ms. Usha Kiran

A. Service Law - Family pension -
Entitlement of disable children of exemployee
-
Disability,
determination
thereof - C.M.O. issued the certificate
showing the petitioner 60% disable -
However, Committee did not treat the
petitioner as disable person on the basis
of some St.ment, wherein he admitted to
have run some PCO in past for his
survival, on the basis of which claim was
rejected
-
Validity
challenged
-
Committee, having no medical officer in
it, how far is competence to question on
certificate - GO dated 20.05.1997 relied
upon - Held, certificate issued by a Chief
Medical
Officer
could
have
been
questioned only by the penal of medical
officers in the field of orthopaedics,
otherwise one could not say that merely
because someone ran a business in the
past, may be he was a disabled, he
would not be entitled for family pension
- 60% physical disability is sufficient
enough for a person to hold him entitled
for family pension as a disabled who had
been dependent of his parents who later
died on 21.04.2013. (Para 8, 9, 10 and
11)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Ms. Usha Devi Singh,
learned counsel for the petitioner, Ms. Usha