# Badri Prasad Yadav [Objection Filed] v. Director Rajya Sabha Utpadan Mandi Parishad UP Lko

- **Citation:** (2015) 3 ILRA 1303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-19
- **Case number:** Service Single No. 4366 of 2009
- **Bench:** Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-prasad-yadav-objection-filed-v-director-rajya-sabha-utpadan-mandi-43312
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Principle of
Natural Justice-non compliance-order not
sustainable-consequential direction given.
Held: Para-12
Fundamental requirement of law is that
the doctrine of natural justice should be
complied with and has, as a matter of
fact, turned out to be an integral part of
1304
 INDIAN LAW REPORTS ALLAHABAD SERIES
administrative jurisprudence. It was also
held in this case that at an enquiry facts
have to be proved and the person
proceeded
against
must
have
an
opportunity to cross-examine witnesses
and
to
give
his
own
version
or
explanation about the evidence on which
he is charged and to lead his defence.
Case Law discussed:
AIR 1961 SC 1623; (1998) 6 SCC 651; (2008)
8 SCC 236; [2003] (21) LCD 610; AIR 1968 SC
158; AIR 1963 SC 1719; (1986) 3 SCC 229

## Text

3 All] Badri Prasad Yadav [objection filed] Vs. Director Rajya Sabha Utpadan Mandi Parishad UP Lko 1303
behalf of appellant was that issues were
not framed on counter-claim, therefore, in
such circumstance judgment and decree
of trial court is not sustainable in eye of
law.
14.
As discussed above, in nonpayment of requisite mandatory legal court
fees the pleading of defendant could not be
accepted as formal counter-claim. In his
written statement and counter-claim the
defendant had sought relief of cancellation of
registered agreement to sell dated 12.2.2009
in light of relief sought by plaint and in
alleged counter-claim several issues were
framed including the issue no. 1 to the effect
that whether registered agreement dated
12.2.2009 between the parties was legally
executed, and issue no. 2 that whether
plaintiff has always been ready and willing to
perform his part of contract. These two issues
cover the pleadings and relief sought in
alleged counter-claim of defendant-appellant.
Therefore, contention of learned counsel for
the appellant on this point is non-acceptable.
15. So far as decision on point of
substantial question of law is concerned,
there appears none in this matter. The
only dispute between the parties is as to
whether registered deed of agreement to
sell dated 12.2.2009 between the parties is
executable or not and whether plaintiff
has been ready and willing to perform his
part of contract or not. The trial court had
framed specific issues on these points and
the
two
courts
below
have
given
concurrent finding of fact on these points.
16.

On
examination
of
the
reasonings recorded by the trial court,
which are affirmed by the learned first
appellate court in first appeal, I am of the
view that the judgments of the trial court
as well as the first appellate court are well
reasoned, based upon proper appreciation
of the entire evidence on record. No
question of law much less a substantial
question of law was involved in this case
before the High Court. No perversity or
infirmity is found in the concurrent
findings of fact recorded by the trial court
that has been affirmed by the first
appellate court to warrant interference in
this appeal. None of the contentions of the
learned
counsel
for
the
appellantdefendant can be sustained.
17. In view of the above, this Court
finds that no substantial question of law
arises in this appeal. The second appeal is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.11.2015
BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA, J.
Service Single No. 4366 of 2009
Badri Prasad Yadav [Objection Filed]
 ...Petitioner
Versus
Director Rajya Sabha Utpadan Mandi
Parishad UP Lko.
.......Respondent
Counsel for the Petitioner:
RBS Rathore
Counsel for the Respondents:
N C Mehrotra, Brijesh Kr. Chaudhary
Constitution of India, Art.-226-Principle of
Natural Justice-non compliance-order not
sustainable-consequential direction given.
Held: Para-12
Fundamental requirement of law is that
the doctrine of natural justice should be
complied with and has, as a matter of
fact, turned out to be an integral part of
1304
 INDIAN LAW REPORTS ALLAHABAD SERIES
administrative jurisprudence. It was also
held in this case that at an enquiry facts
have to be proved and the person
proceeded
against
must
have
an
opportunity to cross-examine witnesses
and
to
give
his
own
version
or
explanation about the evidence on which
he is charged and to lead his defence.
Case Law discussed:
AIR 1961 SC 1623; (1998) 6 SCC 651; (2008)
8 SCC 236; [2003] (21) LCD 610; AIR 1968 SC
158; AIR 1963 SC 1719; (1986) 3 SCC 229
(Delivered by Hon'ble Devendra Kumar
Arora, J.)
1. Heard Sri R.B.S. Rathore, learned
Counsel for the petitioner and Sri
N.C.Mehrotra, learned Counsel for the
opposite parties.
2.
By means of the present writ
petition, petitioner is challenging the order
dated 15.9.2008 passed by Dy. Director
(Administration/Marketing), Rajya Krishi
Utpadan Mandi Parishad, U.P. Lucknow,
whereby on reconsideration, the earlier
removal order dated 22.11.2004 has been
reiterated. The petitioner has also challenged
the order dated 16.9.2008 whereby petitioner
has been shown to be retired on 31.1.2005
whereas the petitioner was allowed to
continue in service till 31.1.2007.
3. The sole ground of challenge of the
impugned order dated 15.9.2008 is that it
has been passed in utter violation of the
Principles of natural justice as this Court
while quashing the order of termination
dated 22.11.2004 has granted liberty to the
respondents to proceed with inquiry afresh
from the stage of the reply of the charge
sheet submitted by the petitioner and
conclude
the
same
after
providing
opportunity of hearing including oral
hearing to the petitioner. From the record, it
also comes out that the petitioner has filed
writ petition no. 1400 (SS) of 2007
challenging his date of superannuation on
the ground that his actual date of birth is
15.11.1947, however in the Service Book it
has been changed as 15.1.1947. The said
writ petition was dismissed vide judgment
and order dated 29.3.2007. It appears from
the record that against the aforesaid order
dated 29.2.2007, petitioner filed a special
appeal no. 411 of 2007, wherein the
Division Bench of this Court directed the
opposite parties to pay admitted amount of
post retiral benefit dues of the appellant.
4. According to the petitioner,
petitioner through supplementary affidavit
filed in the contempt petition came to
know about the impugned order dated
15.9.2008, whereby earlier order dated
22.11.2004 has been upheld at the back of
the petitioner. Learned Counsel for the
petitioner has contended that the Inquiry
Officer did not inform the petitioner
regarding the date, time and place of the
enquiry and the enquiry was concluded at
the back of the petitioner, therefore, the
impugned order dated 15.9.2008 is per se
bad and unreasonable.
5. As the matter pertains to no
observance of principles of natural justice,
it would be useful to refer some of the
cases in which the Apex Court and this
Court has laid down the procedure to be
followed
during
the
disciplinary
proceedings
against
a
delinquent
employee.
6. In State of Madhya Pradesh vs.
Chintaman
Sadashiva
Waishampayan;
AIR 1961 SC 1623; State of U.P. vs.
Shatrughan Lal and another; (1998) 6
SCC 651 and State of uttaranchal and
others vs. Kharak Singh (2008) 8 SCC
3 All] Badri Prasad Yadav [objection filed] Vs. Director Rajya Sabha Utpadan Mandi Parishad UP Lko 1305
236, the Apex Court has emphasized that
a proper opportunity must be afforded to a
government servant at the stage of the
enquiry, after the charge sheet is supplied
to the delinquent as well as at the second
stage when punishment is about to be
imposed on him. In State of Uttaranchal
& ors. V. Kharak Singh (supra) the Apex
Court has enumerated some of the basic
principles
to
be
observed
in
the
departmental inquiries and consequences
in the event, if these basic principles are
not adhered to, the order is to be quashed.
The principles enunciated are reproduced
herein:
(a) The inquiries must be conducted
bona fide and care must be taken to see
that the inquiries do not become empty
formalities.
(b) If an officer is a witness to any of
the incident which is the subject matter of
the enquiry or if the enquiry was initiated
on the report of an officer, then in all
fairness he should not be the Enquiry
Officer. If the said position becomes
known after the appointment of the
Enquiry Officer, during the enquiry, steps
should be taken to see that the task of
holding an enquiry is assigned to some
other officer.
(c)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent
charged,
give
an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether he
wants to lead any evidence and asked to give
any explanation about the evidence led
against him. [emphasis supplied]
7. On receipt of the enquiry report,
before proceeding further, it is incumbent
on the part of the disciplinary/punishing
authority to supply a copy of the enquiry
report and all connected materials relied
on by the enquiry officer to enable him to
offer his views, if any.
8. A Division Bench of this Court in
Radhey Kant Khare vs. U.P. Cooperative
Sugar Factories Federation ltd. [2003](21)
LCD 610 held that after a charge-sheet is
given to the employee an oral enquiry is a
must, whether the employee requests for it or
not. Hence a notice should be issued to him
indicating him the date, time and place of the
enquiry. On that date so fixed the oral and
documentary evidence against the employee
should first be led in his presence. Thereafter
the employer must adduce his evidence first.
The reason for this principle is that the
charge-sheeted employee should not only
know the charges against him but should also
know the evidence against him so that he can
properly reply to the same. The person who
is required to answer the charge must be
given a fair chance to hear the evidence in
support of the charge and to put such relevant
questions by way of cross-examination, as he
desires. Then he must be given a chance to
rebut the evidence led against him.
9. In State of U.P. v. C.S. Sharma,
AIR 1968 SC 158 the Supreme Court held
that omission to give opportunity to an
employee to produce his witnesses and
lead evidence in his defence vitiates the
proceedings.
10. In Meenglas Tea Estate v. Their
Workmen AIR 1963 SC 1719 the
Supreme Court observed "it is an
elementary principle that a person who is
required to answer the 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
1306
 INDIAN LAW REPORTS ALLAHABAD SERIES
charge and to put such relevant questions
by way of cross-examination 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, if the result of
the enquiry is to be accepted.
11. It would be useful to mention that
In Kashinath Dikshita versus Union of India
and others; (1986)3 SCC 229 the Hon'ble
Supreme Court emphasized that no one
facing a departmental enquiry can effectively
meet the charges unless the copies of the
relevant statements and documents to be
used against him are made available to him.
In the absence of such copies the concerned
employee cannot prepare his defence, cross
examine the witnesses and point out the
inconsistencies with a view to show that the
allegations are incredible. Observance of
natural justice and due opportunity have been
held to be an essential ingredient in
disciplinary proceedings and following these
principles, the Apex Court set-aside the order
of removal.
12. Fundamental requirement of law
is that the doctrine of natural justice
should be complied with and has, as a
matter of fact, turned out to be an integral
part of administrative jurisprudence. It
was also held in this case that at an
enquiry facts have to be proved and the
person proceeded against must have an
opportunity to cross-examine witnesses
and
to
give
his
own
version
or
explanation about the evidence on which
he is charged and to lead his defence.
13.
In Kashinath Dikshita versus
Union of India and others; (1986)3 SCC
229 the Hon'ble Supreme Court emphasized
that no one facing a departmental enquiry
can effectively meet the charges unless the
copies of the relevant statements and
documents to be used against him are made
available to him. In the absence of such
copies the concerned employee cannot
prepare his defence, cross examine the
witnesses and point out the inconsistencies
with a view to show that the allegations are
incredible. Observance of natural justice
and due opportunity has been held to be an
essential
ingredient
in
disciplinary
proceedings.
14. Sri N.C.Mehrotra, learned Counsel
for the opposite parties after going through
the orginal record of the enquiry fairly
submitted that the before the Inquiry Officer
the department has not lead any evidence to
prove the charges and the Inquiry Officer has
concluded and submitted its report on the
basis of charge and the reply submitted by
the
petitioner.
The
disciplinary
authority/punishing authority has also not
examined this aspect of the matter.
15.
Appreciating the submission of
the learned Counsel for the parties and fair
submission of the Sri N.C.Mehrotra, learned
Counsel for the opposite parties, this Court
feels that the impugned order dated
15.9.2008 is not sustainable as the same has
been passed in total breach of Principles of
natural justice and the due procedure has
not been followed during the inquiry.
16. Accordingly the impugned order
dated
15.9.2008
suffers
from
legal
infirmity and cannot be sustained and is
hereby quashed. However, it is open for
the department to proceed afresh, if they
so desires.
17. As far as issue with respect to
the payment of salary up to the
petitioner's superannuation is concerned,
3 All] Kedar Nath Vs. Waqf Sheikh Abdullah Charitable Madursa, Allahabad & Ors.
1307
if the same has not been paid, the
competent authority will examine the
same and pass appropriate orders within a
period of two months keeping in mind
that the petitioner has already attained the
age of superannuation and is at the fag
end of his life.
18. With the aforesaid directions,
writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Matters Under Article 227 No. 6401 of 2015
Kedar Nath
 ...Petitioner
Versus
Waqf Sheikh Abdullah Charitable Madursa,
Allahabad & Ors.
.Respondents
Counsel for the Petitioner:
Sri Atul Dayal
Counsel for the Respondents:
Sri Anand Mohan Lal
Constitution of India, Art.-227-read with
C.P.C. Order XV Rule-5-Striking out
defence-petitioner
on
first
date
of
hearing-e.g. 13.10.08 filed WS-on same
date deposited entire amount of rentwithdrawn by land lord-according sub
Rule (2) defendant has right to make
representation-the word used in sub
section (1) 'may' obliged the Court to
give
positive
consideration-rather
to
strike out defence in every case-not a
penal clause to the tenant but sole
purpose to ensure payment of entire
amount
of
rent-not
disputed
by
respondent/land lord held-defence can
not be strike off-both court below
committed-illegality quashed.
Held: Para-18
In the facts and circumstances of this
case, the court below have not recorded
a finding regarding the date of hearing of
the suit and proceeded to strike off the
defence
taking
into
account
the
intermittent delay in depositing the
subsequent sums by the applicant. It is
not disputed by learned counsel for the
respondent that the entire sum due has
already
been
deposited.
In
these
circumstances, I am of the view that the
impugned orders cannot be sustained,
accordingly, the petition is allowed.
Case Law discussed:
(1981) 3 SCC 486; [2013 (100) ALR 210];
[2007 (3) ARC 77]; 1998 (1) ARC 545; [2010
(2) ARC 260]; 1999 (1) AWC 715; 1996 (1)
ARC 62; 1996 (2) ARC 406; 2015 (2) ABR 406;
[2012 (1) ARC 691]; [2008 (2) ARC 621].
(Delivered by Hon'ble Suneet Kumar, J.)
1. Heard learned counsel for the
parties.
2. On the request of the learned
counsel for the parties, the petition is
being decided at the admission stage
without calling for counter affidavit.
3.

The
tenant/applicant
has
approached the Court assailing order
dated 22 September 2015 passed by the
revisional court/Additional District Judge,
Court No. 12, Allahabad in Civil Revision
No. 101 of 2012 (Kedar Nath and others
Versus Waqf Sheikh Abdulla and others)
arising from order dated 31 January 2012
passed by the Judge Small Causes Court,
Allahabad in Original Suit No. 22 of
1999, whereby, the application under
Order XV Rule 5 C.P.C. filed by the first
respondent has been allowed.
4. The premises No. 205/46,
Minhajpur, Dr. Katju Road, Allahabad
belongs to the frist respondent, a suit for