# as well as Hon'ble Apex Court in Shamim Akhtar v. Iqbal Ahmad and another,2000 AIR SCW 3793, supports the cause of no.3

- **Citation:** (2012) 3 ILRA 1519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-10
- **Bench:** Rajiv Sharma, Mahendra Dayal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/as-well-as-hon-ble-apex-court-in-shamim-akhtar-v-iqbal-ahmad-and-another-2000-42348
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226dismissel order-without giving inquiry
report-without
issuing
show
cause
notice before passing major punishmentheld-clear violation of settled principles
of Law & Natural Justice as well-order
quashed-liberty to conduct fresh inquiry
in accordance with law.

Held: Para-17

In the present case, the manner in which
the Executive Council of the University
has acted in awarding punishment to the
petitioner is totally illegal and against
the principles of natural justice as
neither the copy of the Inquiry Report
was provided to the petitioner nor any
opportunity of hearing was given to him
before
awarding
him
the
major
punishment of dismissal.
Case Law discussed:
AIR 1994 SC 1074
1520 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

## Text

3 All] Dr. Vinay Kumar Pandey V. Chancellor D. D. U. Gorakhpur University Gorakhpur 1519
relief, interim or otherwise. I find force
while holding this, by the law laid down
in Dalip Singh v. State of U.P. (2010) 2
SCC, 114 by Hon'ble Supreme Court. The
Hon'ble Apex Court has held in Welcome
Hotel v. State of A.P. AIR 1983 S.C.
1015 that a party which has mislead the
Court in passing an order in its favour, is
not entitled to be heard on the merits of
the case.

16. The law laid down by this Court
as well as Hon'ble Apex Court in Shamim
Akhtar
v.
Iqbal
Ahmad
and
another,2000 AIR SCW 3793, supports
the cause of opposite party no.3.

17. On the basis of discussions made
above, writ petition deserves to be
dismissed. Writ petition is accordingly
dismissed with a cost of Rs.25,000/- to be
paid by the petitioners to opposite party
no.3 within thirty days from today or in
case of refusal by opposite party no.3 the
same shall be deposited before the learned
Judge, Small Causes Courts within
stipulated time, which shall be a condition
precedent for the petitioners to participate
in the proceedings of S.C.C. Suit No.22 of
1992. Both the order under challenge are
hereby confirmed. Learned Judge, Small
Causes Court, Bahraich, where the suit is
pending is directed to proceed on with the
case, on day to day basis, in such a
fashion, that it is decided within three
months from the date of production of a
certified copy of this order.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.12.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE MAHENDRA DAYAL, J.

Service Bench No. - 189 of 2012

Dr. Vinay Kumar Pandey
 ...Applicant
Versus
Chancellor
Deen
Dayal
Upadhyay
Gorakhpur University Gorakhpur

 ...Respondents

Counsel for the Petitioner:
Sri Chandra Bhushan Pandey
Sri Rohit Tripathi

Counsel for the Respondents:
C.S.C.
Sri Alok Mathur
Sri Rajesh Chandra Mishra

Constitution
of
India,
Article
226dismissel order-without giving inquiry
report-without
issuing
show
cause
notice before passing major punishmentheld-clear violation of settled principles
of Law & Natural Justice as well-order
quashed-liberty to conduct fresh inquiry
in accordance with law.

Held: Para-17

In the present case, the manner in which
the Executive Council of the University
has acted in awarding punishment to the
petitioner is totally illegal and against
the principles of natural justice as
neither the copy of the Inquiry Report
was provided to the petitioner nor any
opportunity of hearing was given to him
before
awarding
him
the
major
punishment of dismissal.
Case Law discussed:
AIR 1994 SC 1074
1520 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(Delivered by Hon'ble Rajiv Sharma, J.)

1. The petitioner has challenged the
order dated 6.1.2012 passed by the
Chancellor,
Deen
Dayal
Upadhyay
Gorakhpur
University,
Gorakhpur,
respondent no.1, the resolution of the
Executive Council dated 28.6.2009, the
charge sheet dated 22.4.2009, served upon
him
and
the
enquiry
report
dated
27.6.2009. The petitioner has further
prayed that the respondents be directed to
reinstate the petitioner in service giving
him all the consequential benefits treating
him to be in continuous service.

2. The petitioner while he was
working as Professor in the Commerce
Department of Deen Dayal Upadhyay
Gorakhpur University, Gorakhpur (the
University), the Vice Chancellor appointed
him as Co-ordinator for the evaluation
work in the B.Ed.. examination for the
session
2006-07
vide
order
dated
30.7.2007. After the examination was over,
one Durga Prasad Yadav of Gorakhpur
made a complaint to the Chief Minister on
18.6.2007
pointing
out
large
scale
irregularities in the conduct of B.Ed.
entrance examination for the session 200506 and 2006-07.

3. The State Government vide order
dated 20.9.2007 passed an order to hold an
enquiry. Pursuant to the said order, the
Commissioner,
Gorakhpur
Division
conducted the enquiry and submitted his
report on 12.12.2007 indicating certain
irregularities. Thereafter on the basis of the
aforesaid letter of the Commissioner, the
State Government issued directions for
conducting full fledged enquiry vide order
dated 22.4.2008. The detailed enquiry was
conducted
by
the
sub-committee,
constituted by the Executive Council of the
University. The Commissioner Gorakhpur
Division, the respondent no.6 was also one
of the members of the sub-committee. A
charge sheet was issued to the petitioner
levelling charges of irregularity committed
by him in the capacity of coordinator. The
sub-committee submitted the enquiry
report on 27.6.2009. It will not be out of
place to mention here that the subcommittee found the charges to be proved
and held the petitioner responsible for the
irregularities.
The
committee
also
recommended for the dismissal of the
petitioner. Thereafter on 30.6.2009 the
petitioner was informed by the Registrar of
the University that the Executive Council
of the University has dismissed him from
service on 28.6.2009. While the enquiry
was in progress, the petitioner preferred
Civil Misc. Writ Petition No.24627 of
2009 before this Court which was disposed
of on 21.1.2011 with the observation that
the petitioner had a statutory remedy of
filing
the
representation
before
the
Chancellor under section 68 of the U.P.
State Universities Act, 1973 (the Act). It
was further directed by the division bench
that if such representation is filed, the
Chancellor may consider the same on merit
and
decide
the
representation
as
expeditiously as possible. It appears that
after the disposal of the aforesaid writ
petition,
the
petitioner
submitted
a
representation
before
the
Chancellor,
respondent no.1, which was decided on
6.2.2012 holding that the dismissal of the
petitioner was not made in violation of the
provision of the Act, Statute or Ordinance.

4. Heard Mr. Chandra Bhushan
Pandey, learned counsel for the petitioner,
Mr. Alok Mathur, learned counsel for the
Chancellor/opposite party No.1 and Mr.
Umesh Chandra, Senior Advocate assisted
by Mr. Rajesh Chandra Mishra, learned
3 All] Dr. Vinay Kumar Pandey V. Chancellor D. D. U. Gorakhpur University Gorakhpur 1521
counsel for the opposite party Nos.3 to 5
and the learned standing counsel.

5. The petitioner has challenged the
entire process of enquiry conducted against
him mainly on the ground that the
committee submitted the enquiry report
without affording any opportunity to the
petitioner and without examining any
witness. The petitioner has also challenged
his appointment as coordinator on the
ground that under the Act, Statute or
Ordinance, there is no provision for the
post or authority of the coordinator. The
charge sheet served upon him was,
therefore, illegal firstly on account of the
fact that it was not issued by the competent
authority and secondly, because it was
totally vague, without indicating any
specific act or irregularity of the petitioner.

6. The submission on behalf of the
petitioner is that the committee had clearly
indicated in its report that neither it was the
duty of the petitioner to evaluate the
answer books nor he actually participated
in the examination process but since he did
not himself inquire into the alleged
irregularities, he was responsible for the
irregularities committed by the concerned
officials. Even the result was not prepared
by the petitioner and the result was also not
declared
by
him.
But
since
the
irregularities were serious in nature and the
petitioner was coordinator, hence he was
responsible
for
all
the
irregularities
committed
during
the
course
of
examination.

7. The petitioner has also challenged
the enquiry report on the ground that his
reply to the charge sheet was not
considered while holding him responsible
and no opportunity of hearing was given to
him before passing any order of dismissal
by the Executive Council. Even, when he
made
a
representation
before
the
Chancellor, his representation was not
properly considered and was decided in a
cursory manner.

8. Shri Alok Mathur, learned counsel
representing the respondent no.1 and Shri
Umesh Chandra, learned senior counsel
assisted by Shri Rajesh Chandra Mishra
representing the respondents no.3 to 5 and
the learned standing counsel submitted that
a division bench of this Court while
disposing of the writ petition no.24627 of
2009, filed by the petitioner considered all
the aforesaid submissions of the petitioner
and clearly held that it cannot be said that
the order was not passed by the competent
authority or that the principle of natural
justice were violated. The Bench further
came to the conclusion that the averments
and material placed on record by the
petitioner do not indicate that the order was
passed in malafide exercise of powers.

9. In view of the observations made
by the division bench, the petitioner can
not now agitate those grounds again in this
writ petition. Moreover, the original
records with regard to the disciplinary
enquiry conducted against the petitioner
have been produced before the Court and
the record reveals that the enquiry was
conducted in a fair manner giving all
possible opportunities to the petitioner to
defend himself.

10. It was also pointed out by the
learned counsel for the respondents that the
B.Ed. entrance examination conducted by
the University was subject to judicial
scrutiny of the Court. In writ petition
no.14587 of 2007 Pradeep Kumar Tripathi
vs. State of U.P. and others a single judge
of the court passed a detailed order on
1522 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
23.5.2007 directing the officers of the
University including the Vice Chancellor
and Registrar to place the record of the
writ petition along with the order before
the Secretary, Higher Education, U.P. who
will conduct a detailed enquiry in the entire
episode. It was further directed that the
Secretary shall recommend appropriate
action against all found responsible.

11. It has been further submitted on
behalf of the respondents that all the
answer books of the B.Ed. entrance
examination were under the control of the
Examination Controller and Rs.25 - 30
lakhs were taken from the students to
award them good marks. The officers of
the University including the Controller
increased the marks of about 4000 students
by accepting money. Under letters of
recognition granted by the National
Council for Teachers Education in favour
of
the
Institution
it
is
specifically
mentioned that an intake of 100 students
would be permissible. However, the
admission was granted to much more
students by increasing their marks. In
compliance of the order of the Court, the
University had to compensate the students
who were illegally admitted in the B.Ed.
course and were subsequently denied
admission, and in this way the University
had to deposit a sum of Rs.47.00 lakhs as
compensation to these students. The copies
of such students were also destroyed in
order to conceal the fraud and irregularity.
The petitioner being the coordinator of the
examination was wholly responsible for all
these affairs and thus the Disciplinary
Committee rightly held him responsible
and
the
Executive
Council
rightly
dismissed him from service.

12. The Chancellor also considered
the representation of the petitioner in detail
and found the order passed by the
Executive Council fully in accordance with
law and rightly rejected the representation
of the petitioner.

13. Having heard the learned counsel
for the parties and going through the
pleadings, it appears that the grievance of
the petitioner is that after the submission of
the enquiry report by the sub committee
and before the order of dismissal passed by
the Executive Council, the petitioner was
not given any opportunity of hearing. It is
submitted
that
the
sub
committee
submitted its report on 27.6.2009 and the
Executive Council held an emergent
meeting on 28.6.2009 and passed an order
for dismissal of the petitioner. This action
on the part of the Executive Council is not
only against the principles of natural
justice but is also against the settled
principle of law. Another grievance of the
petitioner is that the Chancellor while
deciding his representation solely based his
findings on the judgment of this Court
passed in Civil Misc. Writ Petition
No.24267 of 2009 while it was clearly
mentioned in the judgment that the Court
did not examine the merits of the charges.
The Chancellor also failed to consider that
no opportunity of hearing was provided to
the petitioner after submission of the report
of the sub committee and the order passed
by
the
Executive
Council
of
the
University.
The
proceedings
of
the
Executive Council of the University dated
28.6.2009 have neither been annexed by
the petitioner along with the writ petition
or rejoinder affidavit nor it has been
annexed with the counter affidavit filed by
the respondents but the record of the
enquiry proceedings were placed before
this Court by the respondents and a copy
thereof is available on record.
3 All] Dr. Vinay Kumar Pandey V. Chancellor D. D. U. Gorakhpur University Gorakhpur 1523

14. This document clearly suggests
that the sub committee submitted its
enquiry
report
on
27.6.2009
and
recommended
the
dismissal
of
the
petitioner the same day. The Executive
Council of the University held a meeting
on the very next day i.e. on 28.6.2009 and
while accepting the recommendation of the
sub committee, passed an order for
dismissal of the petitioner from the service.
Thus, it is clear that no opportunity was
given to the petitioner to make any
explanation to the report submitted by the
sub committee. This is clear violation of
the settled principles of law and the
principles of natural justice.

15. In the case of Managing
Director,
ECIL,
Hyderabad
Vs.B.
Karunakar reported in AIR 1994 SC
1074, the Apex Court has clearly held that
any
employee
against
whom
the
disciplinary enquiry has been conducted,
has a right to receive a copy of the Inquiry
Officer's report before the disciplinary
authority arrives at its conclusion with
regard to the guilt or innocence of the
employee with regard to the charges
levelled against him. This right is a part of
the employee's right to defend himself
against the charges levelled against him.
That denial of the Inquiry Officer's report
before the disciplinary authority takes its
decision on the charges is a denial of
reasonable opportunity to the employee to
prove his innocence and is a breach of the
principles of natural justice.

16. The Apex Court has further held
that the delinquent employee shall be
entitled to a copy of report even if the
statutory rules do not permit the furnishing
of the report or are silent on the subject.

17. In the present case, the manner in
which the Executive Council of the
University
has
acted
in
awarding
punishment to the petitioner is totally
illegal and against the principles of natural
justice as neither the copy of the Inquiry
Report was provided to the petitioner nor
any opportunity of hearing was given to
him before awarding him the major
punishment of dismissal.

18. So far as the judgment of the
Division Bench in writ petition No.24627
of 2009 is concerned, this writ petition was
filed by the petitioner for expeditious
disposal of his enquiry but during the
pendency of the writ petition, the enquiry
was completed and punishment was also
awarded to the petitioner. The Division
Bench while disposing of the writ petition
has observed that against the order of
Executive Council of the University, the
petitioner
has
a
remedy
to
move
representation before the Chancellor under
Section 68 of the Act. The Bench further
clarified that the merits of the charges were
not examined and the discussion of fact in
the judgment was only to find out that any
case of interference without exhausting
alternative remedy has been made out or
not. The relevant portion of the judgment
is reproduced below;

" In the present case, we do not find
that the petitioner has been able to make
out any exception to circumvent the
alternative remedy, which is efficacious
and speedy.

In the above circumstances, it cannot
be said that the order was not passed by
the competent authority, or that the
principle of natural justice were violated.
Further at this stage we are not satisfied
from the averments and material produced
1524 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
on record that the order has been passed
in malafide exercise of powers.

For
the
aforesaid
reasons,
we
relegate the petitioner to the statutory
remedies of filing representation before the
Chancellor under Section 68 of the U.P.
State Universities Act, 1973. If such a
representation is filed, the Chancellor may
consider the same on merits and decide the
representation as expeditiously as possible.
We make it clear that we have not
examined the merits of the charges. The
discussion of facts in the judgment is only
to
find
out
whether
any
case
of
interference,
without
exhausting
alternative remedies has been made out.

The writ petition is disposed of
accordingly."

19. Thus, it is clear that their
Lordships while disposing of the earlier
writ petition of the petitioner did not
examine the merits of the case but only
confined themselves to find out as to
whether the petitioner could be given any
relief without exhausting the alternative
remedy of filing of the representation
before the Chancellor.

20. The Chancellor while deciding
the representation of the petitioner did not
consider the fact after submission of the
Inquiry Report by the sub-committee and
recommending
the
dismissal
of
the
petitioner no opportunity was given to him.
The Executive Council of the University
proceeded to hold meeting and passed an
order dismissing the petitioner from the
service without even providing a copy of
the Inquiry Report to the petitioner and
providing him any opportunity to give
explanation to the Inquiry Report.

21. In view of the above, the order
passed by the Chancellor cannot be
allowed to stand and is liable to be
quashed. Since the Executive Council of
the University has also not followed the
settled principles of law while passing the
major punishment to the petitioner, the
resolution of the Executive Council dated
28.6.2009 as contained in Annexure No.2
to the writ petition is also liable to be
quashed.

22. The petitioner has further
challenged the Inquiry Report dated
27.6.1009 submitted by the sub-committee
holding that the petitioner is responsible
for the irregularities committed during the
B.Ed examination for the year 2006-07. It
has been submitted on behalf of petitioner
that the petitioner was served with the copy
of the charge sheet to which he gave his
reply but during the course of enquiry by
the sub-committee he was not provided
sufficient opportunity to defend himself.
Even the copy of the documentary
evidence used against him was not
provided to him. No witness of the alleged
irregularity was examined during the
course of enquiry, thus the petitioner
interest was highly prejudiced. Article 311
of the Constitution of India has protected
the interest such employees against whom
the disciplining enquiry is being held. It
provides that such employee shall be given
a reasonable opportunity of being heard in
respect of the charges against him.

23. A perusal of the enquiry report
does not indicate that any witness was
examined during the course of enquiry or
petitioner was given any opportunity to
cross examine any such witness. However,
the submission of the learned counsel for
the respondents is that the witnesses were
examined during enquiry and the petitioner
3 All] State of U.P. V. Sukhey
1525
also cross-examined some of the witnesses.
The copies of the statement of such
witnesses have not been placed on record
by the respondents. There is also no
reference in the enquiry report as to how
many witnesses were examined during the
course of enquiry and the petitioner was
given opportunity to cross examine them.
The Inquiry Report reveals that the subcommittee considered only the reply
submitted by the petitioner to the charge
sheet and considered other documents
made available to the committee and found
the petitioner guilty of irregularities. Subcommittee thus found it sufficient to
consider only the reply of the petitioner
submitted against the charge sheet served
upon him while the law as well as
principles of natural justice require that
such employee against whom serious
charges have been levelled should be given
proper and reasonable opportunity to
defend himself in any enquiry against him.

24. In view of this, we are of the
view that the Inquiry Report submitted by
the sub-committee is also vitiated and is
also liable to be quashed.

25. In the result, the writ petition
partly succeeds. The order passed by the
Chancellor dated 6.1.2012 as contained in
Annexure No.1 to the writ petition, the
resolution of the Executive Council dated
28.6.2009 as contained in Annexure No.2
to the writ petition and the Inquiry Report
dated 27.6.2009 as contained in Annexure
No.23 to the writ petition are quashed.
However, it will be open to the authorities
to conduct fresh enquiry against the
petitioner in accordance with law.

26. In the circumstances of the case,
there will be no order as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2012

BEFORE
THE HON'BLE DINESH GUPTA, J.

First Appeal Defective No. - 494 Of 1991

State of U.P.

...Defendant
Versus
Sukhey

 ...Plaintiff

Counsel for the Petitioner:
S.C.
Sri A.P. Singh

Counsel for the Respondents:
Sri Anil Sharma

Code of Civil Procedure-Section 151 and
152-read with Section 23 (1-A) of Land
Acquisition Act 1984-reference court
allowed
the
application-considering
amended provision by giving additional
amount-solatiam at rate of 9% per
annum-objection that reference court
can not review its earlier order-heldmisconceived-in view of Law developed
by
Apex
Court
even
if
correction
application
treated
review-Court
committed no illegality by allowing
application under Section 151 and 152
C.P.C.

Held: Para-28

I am unable to accept the contentions
raised by the learned counsel for the
State even if these applications are
treated as review applications even then
court has not committed any illegality in
allowing
these
applications
in
Jay
Chandra Mahapatra Vs. Land Acquisition
Officer, Raigarh reported in (2005 (9)
SCC 123). The Apex Court has clearly
held that the review by the reference
court amending the decree by allowing
the
enhance
solatium
is
clearly
maintenable thus, if the arguments of
the appellant is taken correct even then