# Ashok Kumar Seth v. U.P. Cooperative Federation Ltd. & Ors

- **Citation:** (2025) 4 ILRA 542
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-21
- **Case number:** Writ - A No. 1540 of 2005
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-seth-v-u-p-cooperative-federation-ltd-ors-53162
- **Pages:** 10

## Headnote

A. Service Law - UP Cooperative Societies
Employees Service Regulations, 1975 -
Reg. 85 (i) - Punishment - Disciplinary
proceeding - Principle of natural justice -
Enquiry was not completed by fixing date,
time and place - Enquiry Officer did not
prove the documents available on record
after summoning the same from the office
concerned - Effect - Held, the enquiry
officer did not call upon the witnesses to
prove the documents and at one place, he
has mentioned that photocopy of the
documents are available with him. Thus,
the enquiry report cannot be made the
basis for punishment because the enquiry
officer did not follow the principles of
natural justice by adducing evidence on
record as per Regulation 85(i) of the
Regulations,
1975
-
The
impugned
punishment order cannot be sustained in
the eyes of law as there is complete
departure of procedure prescribed under
Regulations 85(i) and 85(i)(c) of the
Regulations, 1975 by the enquiry officer.
(Para 25, 26 and 27)

Writ petition allowed. (E-1)

List of Cases cited:-

## Text

542 INDIAN LAW REPORTS ALLAHABAD SERIES
eyes of law. The same is hereby
quashed accordingly.

21. The writ petition succeeds and is
allowed.

22.
The
authority
concerned
is
directed to refund any excess amount
deposited by the petitioner along with
interest @ 4% per annum from the date of
its deposit till the date of refund, within a
period of four weeks from the date of
production of a certified copy of this order.
----------
(2025) 4 ILRA 542
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Writ - A No. 1540 of 2005

Ashok Kumar Seth ...Petitioner
Versus
U.P. Cooperative Federation Ltd. & Ors.
 ...Respondents

Counsel for the Petitioner:
Virendra Misra

Counsel for the Respondents:
R. Siddiqui, Kapil Dev, Shireesh Kumar

A. Service Law - UP Cooperative Societies
Employees Service Regulations, 1975 -
Reg. 85 (i) - Punishment - Disciplinary
proceeding - Principle of natural justice -
Enquiry was not completed by fixing date,
time and place - Enquiry Officer did not
prove the documents available on record
after summoning the same from the office
concerned - Effect - Held, the enquiry
officer did not call upon the witnesses to
prove the documents and at one place, he
has mentioned that photocopy of the
documents are available with him. Thus,
the enquiry report cannot be made the
basis for punishment because the enquiry
officer did not follow the principles of
natural justice by adducing evidence on
record as per Regulation 85(i) of the
Regulations,
1975
-
The
impugned
punishment order cannot be sustained in
the eyes of law as there is complete
departure of procedure prescribed under
Regulations 85(i) and 85(i)(c) of the
Regulations, 1975 by the enquiry officer.
(Para 25, 26 and 27)

Writ petition allowed. (E-1)

List of Cases cited:-

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

2.
Chamoli
Distt.
Cooperative
Bank
Vs
Raghunath Singh Ram; (2016) 12 SCC 204

3. Shiv Raj Singh Vs St. of U.P. & ors.; 2018 (5)
ADJ 679 (DB)

4. Roop Narain Pandey Vs U.P. Cooperative
Institutional Service Board & ors.; 2019 (37)
LCD 978

5. Roop Singh Negi Vs Punjab National Bank &
ors.; (2009) 2 SCC 570

6. Smt. Aamina Vs Nagar Palika Parishad,
Pratapgarh & ors.; 2012 (30) LCD 1671

7. Dev Prakash Tewari Vs UP Cooperative
Institutional Service Board, Lucknow & ors.;
(2014) 7 SCC 260

8. Brahmanand Tyagi Vs St. of U.P. & ors.; 2022
(8) ADJ 624

9. St. Bank of India & ors. Vs Narendra Kumar
Pandey; 2013 (2) SCC 740

10. PEPSU Road Transport Corporation Vs Rawel
Singh; 2008 (4) SCC 42

11. Nirmala J Jhala Vs St. of Gujarat and
another;
(2013)
4
SCC
301
4 All. Ashok Kumar Seth Vs. U.P. Cooperative Federation Ltd. & Ors.
543
12. Sarjoo Ram Vs U.P. Cooperative Institutional
Service Board, Lucknow and another; (2004) 1
UPLBEC 761

13. Bhagirathi Jena Vs Board of Directors,
O.S.F.C. & ors.; (1999) 3 SCC 666

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This writ petition has been filed
seeking following reliefs:-

"1) To issue a writ order or
direction in the nature of Certiorari or
likewise quashing the impugned order of
punishment dated 10.01.2005 passed by the
respondent no.2 contained in Annexure
No.8.

11) To issue a writ order or
direction in the nature of Mandamus or
likewise commanding the respondent nos.1
and 2 to reinstate the petitioner in service
with consequential benefits."

2. The facts giving rise to the present
writ petition are that petitioner was
appointed on the post of Assistant in the
year 1976 in the U.P. Cooperative
Federation Limited (for short "Federation")
and after completion of probation period
satisfactorily, he was confirmed on the said
post in 1978. After completion of twelve
years
of
continuous
and
satisfactory
service, the petitioner was promoted to the
post of Assistant Godown Keeper in 1988.
Services of the petitioner and employees of
Cooperative Societies are governed by the
Regulations known as "U.P. Cooperative
Societies Employees Service Regulations,
1975" (for short "Regulations, 1975") and
these guidelines were framed by the Uttar
Pradesh Cooperative Institutional Service
Board and approved by His excellency the
Governor of the State. In 1996, the
petitioner was transferred as Store Incharge in the office of opposite party no.3
at Lakhimpur Kheri.

3. On 19.04.2003, charge sheet
containing two charges, has been issued to
the petitioner requiring him to file his
reply/explanation within fifteen days. Since
the petitioner failed to submit reply,
enquiry report has been submitted by the
enquiry officer on 16.10.2003 holding
guilty of the charges levelled against him.
It is mentioned that in September, 1998, a
rack of fertilizer of IFFCO Urea was
received, which was badly damaged due to
rain at the railway siding and after
weighment, delivery was taken and a
shortage of 16.475 Metric Tonnes was
reported and it was recorded in the record.
Thereafter, in December, 2000, new bags
were provided by the IFFCO for the
purpose of re-bagging of the stock, which
was kept in store in September, 1998 in a
very bad condition. As per the direction of
opposite party no.3, re-bagging was done in
presence of local representative of the
depositor from 28.12.2000 to 25.01.2001
and a difference of 26.681 Metric Tonnes
was noticed. It is mentioned in charge sheet
that for the aforesaid difference, an amount
of Rs.1,55,498.50 has been deducted by the
depositor from the bills of the Federation.

4. It is submitted by counsel for the
petitioner that enquiry officer did not fix
any date, time and place for holding the
enquiry nor any witness was examined to
prove the photocopies of certain papers
referred/relied upon by the enquiry officer.
On
12.05.2004,
Managing
Director,
opposite party no.2, issued a show cause
notice to the petitioner proposing two
punishments. On 02.07.2004, three days
further time was granted to the petitioner to
file his reply. However, on 13.08.2004 to
the utter surprise of the petitioner, another
544 INDIAN LAW REPORTS ALLAHABAD SERIES
show cause notice was issued by the
Additional Managing Director and changed
the
proposed
punishment
illegally,
arbitrarily and wholly without jurisdiction,
that too on the basis of same evidence,
material and without any new development.
On 18.08.2004, petitioner was suspended
and thereafter on 27.08.2004, he submitted
a detailed reply to the show cause notice
and denied the charges and also the
findings of the enquiry officer. On
10.01.2005, opposite party no.2 passed
the impugned order without application
of mind and even without considering
the reply submitted by the petitioner.

5. Learned counsel for the
petitioner has submitted that Regulation
85 of the Regulations, 1975 provides
the procedure for holding disciplinary
proceedings, which reads as under:-

 "85.
Disciplinary
proceedings.---(i)
The
disciplinary
proceedings against an employee shall
be conducted by the Inquiring Officer
[referred to in clause (iv) below] with
due observance of the principles of
natural justice for which it shall be
necessary that -

 (a) The employee shall be
served with a charge-sheet containing
specific
charges
and
mention
of
evidence in support of each charge and
he
shall
be
required
to
submit
explanation in respect of the charges
within reasonable time which shall not
be less than fifteen days;

 (b) Such an employee shall
also be given an opportunity to produce
at his own cost or to cross-examine
witnesses in his defence and shall also
be given an opportunity of being heard
in person, if he so desires;

 (c) If no explanation in respect
of charge sheet is received or the
explanation submitted is unsatisfactory,
the competent authority may award him
appropriate
punishment
considered
necessary.

 (ii) (a) Where an employee is
dismissed or removed from service on
the ground of conduct which has led to
his conviction on a criminal charge; or
(b) Where the employee has absconded
and his whereabouts are not known to
the society for more than three months;
or

 (c) Where the employee refuses
or fails without sufficient cause to
appear before the Inquiring Officer
when specifically called upon in writing
to appear; or

 (d) Where it is otherwise (for
reasons to be recorded) not possible to
communicate with him,

the competent authority may award
appropriate punishment without taking or
continuing disciplinary proceedings.

 (iii) ......................................"

6.
Learned
counsel
for
the
petitioner has vehemently argued that
Regulation 85(i) of the Regulations, 1975
prescribes that enquiry officer has to
complete
the
enquiry
by
observing
principles of natural justice. Regulation
85(i)(c) of the Regulations, 1975 further
indicates that if no explanation in respect of
charge sheet is received or the explanation
submitted is unsatisfactory, the competent
4 All. Ashok Kumar Seth Vs. U.P. Cooperative Federation Ltd. & Ors.
545
authority may award him appropriate
punishment
considered
necessary,
but
while
conducting
the
disciplinary
proceedings, the enquiry officer has to
adhere the procedure prescribed under
Regulation 85(i) of the Regulations, 1975,
whereas in the present case, it is apparent
that the enquiry officer did not held the
enquiry by affording opportunity of hearing
to the petitioner.

7.
Learned
counsel
for
the
petitioner has further submitted that the
enquiry officer did not fix any date, time
and place for holding the enquiry and even
the presenting officer was also not
appointed. No witness was examined by the
enquiry officer. He has further submitted
that in support of charge no.1, there are six
letters and in respect of charge no.2, there
are five letters mentioned in the charge
sheet, but the enquiry officer did not prove
the aforesaid letters by calling the originals
from the concerned department. It has
further submitted that the enquiry officer
has relied upon the photocopy of the stock
register, letter dated 04.10.2001 and other
documents, which were never supplied nor
disclosed to the petitioner. The enquiry
officer has not acted impartially and while
conducting the departmental proceedings,
he became agent of the management and
prepared
the
enquiry
report
with
prejudicial
mind.
Counsel
for
the
petitioner by relying upon the judgment
of the Honble Supreme Court in the case
of State of Uttar Pradesh and others Vs.
Saroj Kumar Sinha, (2010) 2 SCC 772
has
submitted
that
the
enquiry
proceedings held in the present case are
in utter violation of the aforesaid
judgement.

8.
Learned
counsel
for
the
petitioner has also submitted that the
District Manager was also charged, but
he was exonerated, whereas the petitioner
has been held guilty and punishment has
been awarded against him. It has further
submitted that the disciplinary authority
has
predetermined
to
dismiss
the
petitioner from service while issuing
show cause notice and on the basis of exparte report of the enquiry officer, which
is in utter violation of the judgement of
the Hon'ble Supreme Court in the case of
Chamoli Distt. Cooperative Bank Vs.
Raghunath Singh Ram, (2016) 12 SCC
204 and judgment of a Division Bench of
this Court in the case of Shiv Raj Singh
Vs. State of U.P. and others, 2018 (5)
ADJ 679 (DB).

9. It has further submitted by the
counsel for the petitioner that even if the
employee refuses to participate in the
enquiry, it has to be held ex-parte where
evidence has to be led. Approach of the
enquiry officer of automatic prove of
charges on account of non-filing of reply
is erroneous. In this regard, he has relied
upon a judgement of a coordinate Bench
of this Court in the case of Roop Narain
Pandey
Vs.
U.P.
Cooperative
Institutional Service Board and others,
2019 (37) LCD 978. Counsel for the
petitioner by relying upon the judgement
of Hon'ble Supreme Court in the case of
Roop Singh Negi Vs. Punjab National
Bank and others, (2009) 2 SCC 570 has
submitted
that
mere
production
of
document or letter is not enough.
Contents of documentary evidence has to
be proved by examining the witnesses. It
has further submitted that even if the
delinquent employee neither submitted his
reply to the charge sheet nor cooperated in
the enquiry, it was incumbent upon the
enquiry officer to hold ex-parte enquiry to
fix date for defence and informed the
546 INDIAN LAW REPORTS ALLAHABAD SERIES
charged employee. In this regard, he relied
upon the judgement of a coordinate Bench
of this Court in the case of Smt. Aamina
Vs.
Nagar
Palika
Parishad,
Pratapgarh and others, 2012 (30) LCD
1671.

10.
Further
submission
of
learned counsel for the petitioner is that
during pendency of writ petition, the
petitioner has attained the age of
superannuation on 30.06.2013 and there
is no provision in the Regulations, 1975
to continue the enquiry proceedings and
in this regard, the law has been settled
by the Hon'ble Supreme Court in the
case of Dev Prakash Tewari Vs. Uttar
Pradesh
Cooperative
Institutional
Service Board, Lucknow and others,
(2014) 7 SCC 260 and a judgement of
this Court in the case of Brahmanand
Tyagi Vs. State of U.P. and others, 2022
(8) ADJ 624. He has, therefore, submitted
that in the aforesaid circumstances, the
impugned punishment order cannot be
sustained and is liable to be quashed.

11. On the other hand, Sri Shireesh
Kumar, learned counsel for the Federation
has submitted that petitioner did not file
rely to the charge sheet, therefore, it has to
be presumed that he has not rebutted the
charges
levelled
against
him.
After
receiving charge sheet dated 19.04.2003,
the petitioner chose not to file any reply.
Thus, he did not dispute the authenticity of
the evidences cited in the charges and did
not name any witness to cross-examine,
therefore, the enquiry officer conducted the
enquiry as per the procedure provided
under the Rules and submitted the enquiry
report after considering the documents
available on record. Thereafter, petitioner
was given a show cause notice and after
considering
his
reply,
the
impugned
punishment order was passed.

12.
Learned
counsel
for
the
Federation has further submitted that once
the petitioner himself decided not to
participate in the enquiry proceedings, he
cannot be permitted to raise objection
against the bona fide of the disciplinary
proceedings. The petitioner is aware of the
charges, which were mentioned in the
charge sheet. He was allowed repeated
opportunities to submit his reply and to
participate in the enquiry, but he was
absent and chose not to join the enquiry
proceedings by leading evidence. He has
also submitted that the enquiry was
conducted according to the procedure
prescribed under Regulation 85 of the
Regulations, 1975, which provides that an
opportunity of personal hearing is to be
allowed to the delinquent employee if he
desires for such an opportunity, but he did
not appear before the enquiry officer,
therefore, the action of the opposite parties
is supported by the judgement of the
Hon'ble supreme Court in the case of State
Bank of India and others Vs. Narendra
Kumar Pandey, 2013 (2) SCC 740 and
PEPSU Road Transport Corporation Vs.
Rawel Singh, 2008 (4) SCC 42.

13.
Learned
counsel
for
the
Federation
has
also
submitted
that
punishment order dated 10.01.2005 is a
reasoned order and has been passed after
considering the objections submitted by the
petitioner against the show cause notice
dated 13.08.2004. Therefore, the petitioner
cannot be permitted to improve his case at
this stage when he himself opted not to
participate in the disciplinary proceedings.
It has further been submitted that a
delinquent employee is punished on the
principle of preponderance of probability
4 All. Ashok Kumar Seth Vs. U.P. Cooperative Federation Ltd. & Ors.
547
and not on proving the charges beyond
doubt. In the present case, involvement of
the petitioner vis-a-vis the charges levelled
against him is apparent on perusal of the
charge sheet, evidences and objections
submitted by the petitioner against the
show cause notice dated 13.08.2004, as
such punishment order dated 10.01.2005 is
justified. In support of his contention, he
has relied upon the judgement of the
Hon'ble Supreme Court in the case of
Nirmala J Jhala Vs. State of Gujarat and
another, (2013) 4 SCC 301. He has further
submitted that withdrawal of first show
case notice and thereafter issuance of
second show cause notice along with copy
of the enquiry report is permissible and
there is no illegality in it as has been held
by this Court in the case of Sarjoo Ram Vs.
U.P. Cooperative Institutional Service
Board, Lucknow and another, (2004) 1
UPLBEC 761. He has, therefore, submitted
that the impugned punishment order has
been passed after considering the evidence
on record, therefore, no interference is
required by this Court.

14. Heard Sri Virendra Mishra,
learned counsel for the petitioner, Sri
Shireesh Kumar, learned counsel appearing
for the Federation and perused the record.

15. In the case of Saroj Kumar
Sinha (supra), Hon'ble Supreme Court has
observed that an enquiry officer is a quasi
judicial authority and he has to apply his
mind independently and not like agent of
department and even in absence of
delinquent employee, he has to see whether
the un-rebutted evidences to hold that the
charges are proved and in case no oral
enquiry is done or documents are proved,
then it cannot be said that the enquiry was
concluded
after
following
the
due
procedure. Paragraphs 28, 29 and 30 of the
aforesaid judgement are extracted hereinbelow:-

 "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.

 29. Apart from the above by
virtue of Article 311(2) of the Constitution
of India the departmental inquiry had to be
conducted in accordance with rules of
natural justice. It is a basic requirement of
rules of natural justice that an employee be
given a reasonable opportunity of being
heard in any proceeding which may
culminate in a punishment being imposed
on the employee.

 30. When a department enquiry is
conducted against the Government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The enquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
548 INDIAN LAW REPORTS ALLAHABAD SERIES
in imposition of punishment including
dismissal/removal from service."

16. In the case of Roop Singh Negi
(supra),
Hon'ble
Supreme
Court
in
paragraph-14 has held that management
witnesses merely tendered the documents
and did not prove the contents thereof. The
enquiry officer is duty bound to arrive at a
finding upon taking into consideration the
materials brought on record by the parties.
Paragraph 14 of the aforesaid judgement is
quoted below:-

 "14. Indisputably, a departmental
proceeding is a quasi judicial proceeding.
The enquiry officer performs a quasi
judicial function. The charges leveled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon
taking
into
consideration
the
materials brought on record by the parties.
The purported evidence collected during
investigation by the Investigating Officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents
and did not prove the contents thereof.
Reliance, inter alia, was placed by the
Enquiry Officer on the FIR which could not
have been treated as evidence."

17. In the case of Smt. Aamina
(supra), this Court has held that it is settled
law that even in case of an ex-parte
enquiry, intimation should be given to the
delinquent employee about the date, time
and place of oral enquiry and charges
should be proved even if no response to the
charge sheet is submitted by the employee
concerned. In absence of the delinquent
employee, charge should be proved after
following the procedure as indicated above.
In the case of Shiv Raj Singh (supra), it has
been held by a Division Bench of this
Court that in case the disciplinary authority
has made up his mind while issuing show
cause notice, the dismissal order is bad in
the eyes of law.

18. In the case of Dev Prakash
Tiwari (supra), Hon'ble Supreme Court has
held in paragraphs 7 and 8 that once the
delinquent employee has retired from
service and in absence of any Rule to
proceed
afresh,
the
departmental
proceedings cannot be allowed even for the
purpose of imposing any reduction in the
retiral benefits payable to the employee.
Paragraph-8 of the aforesaid judgement is
quoted below:-

 "8. Once the appellant had
retired from service on 31.3.2009, there
was
no
authority
vested
with
the
respondents for continuing the disciplinary
proceeding even for the purpose of
imposing any reduction in the retiral
benefits payable to the appellant. In the
absence of such an authority it must be
held that the enquiry had lapsed and the
appellant was entitled to get full retiral
benefits."

19. In the case of Bhagirathi Jena
Vs. Board of Directors, O.S.F.C. and
others, (1999) 3 SCC 666, while dealing
with the similar question, Hon'ble Supreme
Court in paragraph-7 held as under:-

 "7. In view of the absence of such
provision in the abovesaid regulations, it
must be held that the Corporation had no
legal authority to make any reduction in the
retiral benefits of the appellant. There is
also no provision for conducting a
disciplinary enquiry after retirement of the
4 All. Ashok Kumar Seth Vs. U.P. Cooperative Federation Ltd. & Ors.
549
appellant and nor any provision stating
that in case misconduct is established, a
deduction could be made from retiral
benefits. Once the appellant had retired
from service on 30.6.95. there was no
authority vested in the Corporation or
continuing the departmental enquiry even
for the purpose of imposing any reduction
in the retiral benefits payable to the
appellant. In the absence of such authority,
it must be held that the enquiry had lapsed
and the appellant was entitled to full retiral
benefits on retirement."

20. Similar view has been taken in
the case of Brahmanand Tyagi (supra) and
this Court in paragraph-8 of the judgement
has held that the disciplinary proceedings
cannot be continued after retirement.
Admittedly, in the present case, the
petitioner
has
attained
the
age
of
superannuation on 30.06.2013 and no Rule
or Regulation is there, which provides that
the departmental proceedings can be
continued after retirement.

21. Sri Shireesh Kumar, learned
counsel for the Federation has relied upon
paragraph-22 of the judgement of the
Hon'ble Supreme Court in the case of
Narendra Kumar Pandey (supra), which
reads as under:-

 "22. We are of the view that the
High Court also committed an error in
holding that since no witness was examined
in support of charges, it was a case of no
evidence. In an ex-parte inquiry, in our
view, if the charges are borne out from
documents kept in the normal course of
business, no oral evidence is necessary to
prove those charges. When the charged
officer does not attend the inquiry, then he
cannot contend that the Inquiring Authority
should not have relied upon the documents
which were not made available or
disclosed to him. Of course, even in an exparte inquiry, some evidence is necessary
to establish the charges, especially when
the charged officer denies the charges,
uncontroverted documentary evidence in
such situation is sufficient to prove the
charges."

22. The facts of the case of
Narendra Kumar Pandey is very relevant to
be seen in the perspective of the present
case, wherein the date and time were fixed
by the enquiry officer, but the delinquent
employee remained absent and did not
avail the opportunity. The presenting
officer
had
produced
the
original
documents before the enquiry officer and
after elaborate consideration of the charges,
statement of the allegations and supporting
documents were considered by the enquiry
officer. Thus, facts of the present case are
entirely different from the case of Narendra
Kumar Pandey, wherein it is worth to be
mentioned that admittedly no date, time
and place was ever fixed by the enquiry
officer and neither the presenting officer
was appointed nor the documents as
mentioned in support of the charges were
proved by calling the originals from the
concerned department.

23. Reliance has also been paced
by the counsel for the Federation upon
paragraphs 3, 4 and 14 of the judgment of
the Supreme Court in the case of Rawel
Singh (supra), but since paragraph 14 is
relevant, the same is quoted below:-

 "14. Having heard the learned
counsel for the parties and considering the
facts and circumstances in their entirety, in
our opinion, the appeal deserves to be
partly allowed. As already observed by us,
even
at
an
earlier
occasion,
when
550 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations were levelled against the
respondent-workman, notice was issued
and enquiry was instituted, he did not make
himself available and the Enquiry Officer
was constrained to proceed with the
enquiry
ex-parte
and
an
order
of
termination of services was passed. True it
is
that
the
respondent-workman
approached Civil Court and the suit filed
by him came to be allowed and the decree
was confirmed in appeal. But it is equally
true that liberty was granted to the
Corporation to initiate proceedings afresh
on the same charges and hence initiation of
proceedings could not be said to be illegal
or contrary to law. From the record, it is
clear that notice was issued to the
respondent and it was received by him, he
filed his reply, he also appeared before the
Enquiry Officer but subsequently he did not
remain present and absented himself. If, in
the light of the above facts, Enquiry Officer
was obliged to proceed with the enquiry exparte, it could not be said that by doing so,
the Enquiry Officer had committed an error
either of fact or of law and the enquiry
proceedings were liable to be quashed."

24. A careful reading of paragraph14 of the aforesaid judgement indicates that
the delinquent employee-workman did not
appear before the enquiry officer and
thereafter the enquiry officer proceeded in
the enquiry and ex-parte proceedings were
drawn and concluded. The said case is
pertaining to termination order passed
under the provisions of the Industrial
Disputes Act, 1947. Admittedly, in the
present case, there is specific Service
Regulations known as Regulations, 1975
and Regulation 85 provides that the
disciplinary
proceedings
against
an
employee shall be conducted by the
enquiry officer with due observance of the
principles of natural justice. The documents
were not proved and the enquiry officer
forwarded the enquiry report without
following the principles of natural justice in
utter violation of Regulation 85 of
Regulations, 1975. Charge sheet dated
19.04.2003 indicates two charges and in
support of charge no.1, there are six letters
and in support of charge no.2, there are five
letters, but the record reveals that enquiry
officer did not prove the aforesaid letters by
summoning the same from the concerned
office. The said letters could have been
proved by the concerned persons, who had
sent the aforesaid letters. However, the
enquiry report dated 16.10.2003 clearly
indicates that the enquiry officer has
mentioned while forwarding the enquiry
report in support of charge no.1 mentioning
that "इस संबन्ध में उपलब्ध अनभलेख, स्र्ॉक रनजस्र्र की
छायाप्रनत आनद से यह स्पष्ट हुआ है नक जनपद खीरी में इफ्को
य ररया की रैक नसतंबर 98 में प्राप्त हुई थी।"

25. In paragraphs-10 and 11 of the
writ petition, the petitioner has stated that
enquiry proceedings were completed exparte against the petitioner on 01.10.2003.
In reply to paragraphs-10 and 11 of the writ
petition, answering-opposite parties have
stated in paragraph-9 of the counter
affidavit that petitioner did not submit his
explanation
and
the
enquiry
officer
completed the enquiry on the basis of the
documents available. It is nowhere denied
that
the
enquiry
proceedings
were
completed on 01.10.2003. The enquiry
report does not indicate that the enquiry
officer completed the enquiry by fixing
date, time and place and he also did not
prove the documents available on record
after summoning the same from the office
concerned along with oral statements of the
witnesses, who had written the same.

26. The first part of Regulation
85(i) of the Regulations, 1975 postulates
4 All. Sunil Kumar Yadav & Ors. Vs. The State of U.P. & Ors.
551
that the disciplinary proceedings
against an employee shall be conducted by
the officer referred to in clause (iv) below
with due observance of the principles of
natural justice. Regulation 85(i)(c) of the
Regulations, 1975 further provides that if
no explanation in respect of charge-sheet is
received or the explanation submitted is
unsatisfactory, the competent authority may
award
him
appropriate
punishment
considered necessary. Thus, the procedure
as provided in Regulation 85(i)(c) will
certainly be followed with Regulation 85(i)
of the Regulations, 1975, wherein it
stipulated that due observance of the
principles of natural justice shall be
followed while conducting the disciplinary
proceedings
against
an
employee.
Admittedly, in the present case, the enquiry
officer did not call upon the witnesses to
prove the documents and at one place, he
has mentioned that photocopy of the
documents are available with him. Thus,
the enquiry report cannot be made the basis
for punishment because the enquiry officer
did not follow the principles of natural
justice by adducing evidence on record as
per Regulation 85(i) of the Regulations,
1975.

27. After recording the findings on
the basis of facts and law, the impugned
punishment order cannot be sustained in
the eyes of law as there is complete
departure of procedure prescribed under
Regulations 85(i) and 85(i)(c) of the
Regulations, 1975 by the enquiry officer
while conducting the enquiry proceedings,
therefore, the same is liable to be quashed.
Apart from it, in view of law as discussed
above in the case of Dev Prakash Tiwari
(supra) and Bhagirathi Jena (supra), the
fresh
proceedings
to
initiate
the
departmental
proceedings
cannot
be
allowed for the reason that petitioner had
attained the age of superannuation in the
year 2013 and at this juncture he is 72 years
old.

28. Writ petition is accordingly
allowed and a Writ in the nature of
Certiorari is issued quashing the impugned
punishment order dated 10.01.2005 passed
by opposite party no.2, contained in
Annexure No.8 to the writ petition. The
petitioner is entitled for 30% back wages
and retiral benefits as permissible in law.

29. Since the petitioner has been
litigating from 2005 and has retired in
2013, it would be expedient in the interest
of justice to direct the opposite parties to
complete the exercise for payment of 30%
back wages and retiral benefits to the
petitioner, positively, within a period of
three months from the date a certified copy
of this order is produced before the
authority concerned.

----------
(2025) 4 ILRA 551
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2025

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ - A No. 10478 of 2022 connected with
other cases

Sunil Kumar Yadav & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rameshwar Prasad Mishra, Sri Abdulla
Kalam, Sri Ashok Khare (Sr. Advocate)

Counsel for the Respondents: