# Babu Lal v. State of U.P. and others

- **Citation:** (2002) 2 ILRA 519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-10
- **Case number:** Civil Misc. Writ Petition No.43533 of 2000
- **Bench:** S.R. Singh, D.R. Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-lal-v-state-of-u-p-and-others-40002
- **Pages:** 5

## Headnote

Constitution
of
India-
Article
226-
Opportunity has to be given to the
delinquent
to
cross-examine
the
witnesses and to lead evidence in his
defence- for this it is necessary to issue a
notice
to
the
employee
concerned
intimating him date, time and placement
of the enquiry. (Held in para 13)

From the perusal of the record it is also
evident
that
the
petitioner
was
prevented to place his defence before
the enquiry officer as no opportunity,
admittedly,
was
approved
to
the
petitioner, therefore, it cannot be said
that the submissions advanced by the
petitioner are without force. Having
perused the record and after hearing
arguments advanced across the Bar we
are of the view that the judgment and
order passed by the learned tribunal, in
totality, suffers from misreading of fact,
non application of mind, legal infirmities
and being based on conjuncture and
surmises deserves to be quashed.
Case law referred:
(i) 1995 Supp. (3) SCC 212
(ii)
AIR 1968 SC 158
(iii) AIR 1963 SC 1719
(iv) AIR 1960 SC 160
(v)
2001 (2) UPLBEC 1475
(vi) (1993) 4 SCC 727

## Text

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2 All] Babu Lal V. State of U.P. and others
519
statutory
interpretation
provided
by
Supreme Court, in Shyam Kishore's case
(Supra), I take the liberty in extending
the same reason a little further, in holding
that the amount sought to be deposited is
the amount alleged to be due with
accruals which was in dispute at the time
of filing of the appeal, and not the amount
at the time of hearing or determination of
appeal. The objection of the counsel for
petitioner is as such over-ruled.

17. For the reasons detailed and
discussed above, the order of appellate
court is upheld and the writ petition is
dismissed. Costs on parties.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.7.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE D.R. CHAUDHARY, J.

Civil Misc. Writ Petition No.43533 of 2000

Babu Lal

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Bhanu Prakash Misra
Sri Dhananjay Awasthi
Sri U.S. Awasthi

Counsel for the Respondents:
S.C.

Constitution
of
India-
Article
226-
Opportunity has to be given to the
delinquent
to
cross-examine
the
witnesses and to lead evidence in his
defence- for this it is necessary to issue a
notice
to
the
employee
concerned
intimating him date, time and placement
of the enquiry. (Held in para 13)

From the perusal of the record it is also
evident
that
the
petitioner
was
prevented to place his defence before
the enquiry officer as no opportunity,
admittedly,
was
approved
to
the
petitioner, therefore, it cannot be said
that the submissions advanced by the
petitioner are without force. Having
perused the record and after hearing
arguments advanced across the Bar we
are of the view that the judgment and
order passed by the learned tribunal, in
totality, suffers from misreading of fact,
non application of mind, legal infirmities
and being based on conjuncture and
surmises deserves to be quashed.
Case law referred:
(i) 1995 Supp. (3) SCC 212
(ii)
AIR 1968 SC 158
(iii) AIR 1963 SC 1719
(iv) AIR 1960 SC 160
(v)
2001 (2) UPLBEC 1475
(vi) (1993) 4 SCC 727

(Delivered by Hon'ble D.R. Chaudhary, J.)

1. The services of the petitioner who
was an employee in the Collectorate,
Etah, have been terminated by means of
the order dated 29.5.1998 (Annexure-4 to
the Writ Petition). The statutory appeal
preferred against the termination order
was dismissed by the Commissioner,
Agra Division, Agra by his order dated
26.11.1998 (Annexure-5 to the writ
petition)
and
the
claim
petition
challenging the aforesaid two orders also
came to be dismissed by the U.P. Public
Services Tribunal, Lucknow vide its order
and judgment dated 24.7.1998 (Annexure7 to the writ petition). The petitioner has
assailed the aforesaid orders by means of
the present petition.

2. The petitioner, who entered in
service on 6.11.1985, was transferred to
join as Arms Clerk-II on 1.1.1995. One
Shri Hari Singh Rana- a B.S.P. activist,
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
520
without naming anybody, made a general
complaint to the District Magistrate, Etah,
alleging irregularities in issuing Arms
Licences.
In
preliminary
enquiries
conducted by C.O. (City), Aligarh and the
Sub Divisional Magistrate, Sadar and
Patiyali, Etah, none was named as guilty.
The C.O. (City), Aligarh found the
licences to be genuine. However, on the
basis of the twin reports a F.I.R. was
lodged
on
21.10.1997
which
was
registered as case crime no. 517 of 1997
under
sections
419/420/467/468/471
I.P.C. wherein the petitioner was named
as a co-accused alongwith others. In the
investigation
conducted
by
the
Investigating Officer (for short 'I.O.') no
evidence against the petitioner was found.
Accordingly, the I.O. submitted final
report in favour of the petitioner and
charge sheet against the other accused.
The final report was accepted by Chief
Judicial Magistrate, Etah, on 18.8.1998;
the departmental enquiry was in the
meanwhile, initiated and the petitioner
was
placed
under
suspension
on
21.10.1997 and served with charge sheet
dated
12.11.1997.
The
petitioner
submitted reply to the charge sheet. The
Enquiry Officer (for short 'E.O.') fixed
23.3.1998 for hearing; the E.O. was not
present on that date and no other date
could be fixed. The E.O. submitted the
inquiry report on 4.4.1998 with the
findings that all the charges found proved
against the petitioner. The petitioner was
served with the show cause notice to
which he submitted his reply though the
petitioner was denied inspection of the
relevant documents.

Parties have exchanged affidavits.

3. The learned counsel for the
petitioner has challenged the impugned
orders on various grounds. One of the
contentions of the learned counsel for the
petitioner is that no opportunity of hearing
was afforded to the petitioner in as much
as neither any inquiry was held nor any
evidence was adduced by either of the
parties and the inquiry report was
prepared behind the back of the petitioner;
the Tribunal fell into the error of law in
not taking into consideration the aforesaid
undisputed fact. The other contentions of
learned counsel for the petitioner are that
the Tribunal did not take into account the
relevant fact that the licences under
enquiry were issued in 1995 much before
the petitioner took charge of Arms ClerkII on 1.1.1997; that the Tribunal also
failed to take into consideration the
consistent view of the Apex Court that
departmental enquiry conducted without
affording opportunity to the delinquent
vitiates the findings recorded by E.O.; the
Tribunal did not take into consideration
that the petitioner was Arms Clerk-II and
his duty was to assist his Senior Arms
Clerk I; it has also not been taken into
account that it is the Arms Clerk-I who is
the custodian of the Arms Register
containing the details of licences and
Licensees as is inferred from paragraph
no.4 of the Counter Affidavit; the
inventory prepared by the Tehsildar was
not
taken
into
consideration
and
indictment was made without application
of mind.

4. Heard learned counsel for the
petitioner and learned Standing Counsel
appearing for the Respondents and
perused the record.

5. In paragraph nos. 8 & 9 of the
writ petition it is averred that on having
submitted the reply to the charge sheet a
hearing date 23.3.1998 was fixed by the
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2 All] Babu Lal V. State of U.P. and others
521
E.O.
for
the
petitioner
to
appear
personally. It is further averred that the
E.O. on the date fixed was not present as
a result no enquiry could be conducted
and no fresh date could be fixed. In reply
to contents of paragraph nos. 8 & 9 of the
writ petition it is stated in paragraph no.10
of the counter affidavit that on the basis of
the record available after 23.3.1998 no
date was fixed for oral enquiry or
adducing evidence. In the enquiry neither
any statement was recorded nor any
evidence was adduced. Therefore, the
question
of
cross-examination
of
a
witness has no meaning. The E.O.
submitted the report on 4.4.1998 on the
basis of the record. It is further averred in
paragraph no. 10 of the counter affidavit
that there is no such provision where the
E.O. should prepare the enquiry report in
the presence of delinquent. The petitioner
was served with the show cause notice
dated 23.3.1998. The petitioner by two
applications demanded the copy of the
relevant record as well as enquiry report.
The prayer of the petitioner was not
accepted. It is, thus, established on the
record that no opportunity of hearing was
afforded to the petitioner and there was no
enquiry in the eye of law.

6. In similar set of facts the Apex
Court in Meanglas Tea Estate Vs. The
Workmen, AIR 1963 SC 1719 the
Supreme Court observed as under: -

"It is an elementary principle that a
person who is required to answer a charge
must know not only the accusation but
also
the
testimony
by
which
the
accusation is supported. He must be given
a fair chance to hear the evidence in
support of the charge and to put such
relevant questions by way of crossexamination as he desires. Then he must
be given a chance to rebut the evidence
led against him. This is the barest
requirement of an enquiry of this
character and this requirement must be
substantially fulfilled before the result of
the enquiry can be accepted."

7. In S.C. Girotra Vs. United
Commercial Bank, 1995 Supp. (3) SCC
212 the Supreme Court set aside a
dismissal order which was passed without
giving the employee an opportunity of
cross examination. The Apex Court in
State of U.P. Vs. C.S. Sharma, AIR
1968 SC 158 held that: -

"The omission to give opportunity to
the officer to produce his witnesses and
lead evidence in his defence vitiates the
proceedings."

8. The Court further held that in the
enquiry witnesses have to be examined in
support of the allegations, and opportunity
has to be given to the delinquent to cross
examine these witnesses and to lead
evidence in his defence. The similar view
was taken by the Supreme Court in
Punjab National Bank Vs. A.I.P.N.B.E.
Federation, AIR 1960 SC 160 and in
other long line of its decisions. The
Division Bench of this Court in writ
petition no.33291 of 1996, Subhash
Chandra
Sharma
Vs.
Managing
Director and others decided on 7.9.1999,
writ petition no.36434 of 1999, Hari
Nath
Singh
Yadav
Vs.
Administrator/Chairman,
Provincial
Co-operative Federation and others
decided on 8.3.2000 and in Subhash
Chandra Sharma Vs. U.P. Co-operative
U.P. Co-operative Spinning Mills and
others,
2001
(2)
UPLBEC
1475
consistently held that in cases where a
major punishment is proposed to be
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
522
imposed an oral enquiry is a must,
whether the employee requests for it or
not. For this is necessary to issue a notice
to the employee concerned intimating him
date, time and placement of the enquiry.

9. Though the writ petition deserves
to be allowed on the ground aforesaid
alone
however,
under
the
judicial
obligation of the Court we proceed to
consider other submissions advanced by
learned counsel for the parties. It is
argued for the petitioner with reference to
Annexure-8 to the writ petition that Sri
Latoori Singh, Arms clerk I sent a letter
dated 28.12.1996 (Annexure-8 to the writ
petition) to the Prabhari Adhikari (Arms)
stating therein that in the Arms Register
he has noticed entries which appear to be
suspicious and in case enquiry is made he
shall not be held responsible for the same.
The emerges position out of the letter
dated 28.12.1996 is that the entries in
question were existing on the date the
letter aforesaid was sent by Sri Latoori
Singh, secondly the Arms Register was in
custody of Arms Clerk Sri Latoori Singh,
therefore, in the facts circumstances
aforementioned it cannot be held that the
petitioner has manoeuvred the entries in
the Arms Register. The finding recorded
by the tribunal that it is the petitioner who
was in custody of the Arms Register and
has obtained entries in question in his
self-interest is factually incorrect.

10.

We
have
examined
the
arguments of the learned counsel for the
petitioner in the light of the letter dated
28.12.1996 and the averments contained
in para 24 of the counter affidavit wherein
it is admitted by the Respondents that the
Arms Register was in custody of Sri
Latoori Singh, Arms Clerk I and the
entries were existing in the Arms Register
on 28.12.1996. It may also be noticed that
the petitioner took charge of Arms clerk II
on 1.1.1997 and Sri Latoori Singh, Arms
clerk I took charge on 24.12.1996 as is
evidenced from the letter afore stated. We
are, therefore, of the view that the
submission of the learned counsel for the
petitioner has substance.

11. It is next submitted for the
petitioner that it is nowhere case of the
Respondents that the petitioner was given
copy of the enquiry report alongwith the
show cause notice. It appears that learned
tribunal has misread the statements
contained in para 33 and 34 of the claim
petition wherein no statement finds place
that the petitioner was supplied copy of
the enquiry report and in view of the fact
the enquiry proceedings stand vitiated as
held by the Apex Court in Managing
Director, Ecil, Hyderabad and others
Vs. B. Kaunakar and others (1993) 4
SCC 727 wherein it was held that non
supply of the copy of the enquiry report
amounts
to
denial
of
reasonable
opportunity and violation of Article 14
and 21 of the Constitution. Learned
counsel for the Respondents has not
rebutted the submissions canvassed by the
learned counsel for the petitioner. In the
circumstances, the finding recorded by the
tribunal that the petitioner was supplied
copy of the enquiry report is incorrect on
facts available on record hence the entire
enquiry proceedings stand vitiated due to
non supply of the enquiry report as held
by the Apex Court in the case referred to
above. It is further argued for the
petitioner
that
the
petitioner
was
admittedly denied the inspection of the
Arms Register which amount the denial of
opportunity to lead the defence effectively
through the reply to the show cause
notice. In the circumstances the impugned
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2 All] Sahid Ahmed and others V. A.D.J., Saharanpur and others
523
orders passed in utter disregard of Article
14 and 21 of the Constitution deserves to
be quashed.

12. Learned counsel for the
petitioner has also questioned the finding
of the tribunal that the petitioner has
committed
misconduct
by
keeping
typewriter and other official record at a
privately rented room, on the ground that
the statement of the petitioner explaining
that he was orally permitted by the
Prabhari Adhikari to discharge the official
function at rented room for the reason that
there was unduly rush of the politicians
and other influential persons seeking arm
licence. This statement of the petitioner
having not been controverted by the
prescribed authority and as such the
finding of the tribunal is wholly perverse
and unsustainable in law. In fact the
tribunal erred in placing the burden upon
the petitioner to prove that the entry in the
arms register was not forged by him or
that it was not done so to his knowledge.
Burden to prove the charge was on the
Respondent but the tribunal erroneously
assumed that the burden was on the
petitioner.
The
impugned
order
is
therefore, vitiated by error of law.

13. From the perusal of the record it
is also evident that the petitioner was
prevented to place his defence before the
enquiry
officer
as
no
opportunity,
admittedly, was afforded to the petitioner,
therefore, it cannot be said that the
submissions advanced by the petitioner
are without force. Having perused the
record and after hearing arguments
advanced across the Bar we are of the
view that the judgment and order passed
by the learned tribunal, in totality, suffers
from misreading of fact, non application
of mind, legal infirmities and being based
conjuncture and surmises deserves to be
quashed.

14. In the result the writ petition
succeeds and is allowed. The impugned
order dated 29.5.1998 (Annexure-4 to the
writ petition), order dated 26.11.1998
(Annexure-5 to the writ petition), and the
order of the learned tribunal dated
24.7.1998
(Annexure-7
to
the
writ
petition) are quashed. However, it is open
to the Respondents to pass fresh orders in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 393 of 1995

Sahid Ahmed and others
...Petitioner
Versus
Additional
District
Judge,
III,
Saharanpur and others ...Respondents

Counsel for the Petitioners:
Sri Anurag Pathak

Counsel for the Respondents:
S.C.

Provincial
Small
Cause
Courts
Act-
section 23- merely because an objection
has
been
raised
that
there
is
no
relationship between the landlord and
tenant, it cannot be said that the suit is
barred by section 23. (Held in para 5).

Case Law Referred:
AIR 1990 Alld. Page 169
1988 A.W.C. Page 1057
1987 Vol. (1) ARC Page 89

In the teeth of the findings of the two
courts below and the law laid down by
this court as well as apex court no error