# Bharosey Lal v. State of U.P. 2002 (93)

- **Citation:** (2003) 3 ILRA 842
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-12
- **Case number:** Civil Misc. Writ Petition No. 2978 of 1999
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharosey-lal-v-state-of-u-p-2002-93-40215
- **Pages:** 15

## Headnote

Constitution
of
India,
Article
226termination order-appointment on the
post
of
Sinch
Paryavekshak-Sinch
Parveshak
Sangh
made
complaintalleging the appointment to be fictitious-
in enquiry report dated 12.9.94 found
innocent-after submitting reply to the
chares-No any enquiry held-dismissal
http:\\allahabadhighcourt.nic.in
3 All] S.K. Pandey V. E.E., Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and anr. 843
order
passed
in
utter
violation
of
principle of natural justice- held- order
of dismissal cannot sustained, but before
the joining, the Chief Engineer directed
to pass appropriate order considering
the records if the petitioner desires oral
hearing may be allowed- continuance on
the post and other benefit shall depend
upon the decision.

Held- Para 23

I have heard learned counsel for the
parties. I find that in view of the serious
allegations against the selection grade
doubt has been raised with regard to the
selection,
appointment
and
alleged
involvement of forgery on the part of the
petitioners, although the order dated
20.11.1998 is not legally sustainable for
lack of providing opportunity of natural
hearing therefore, it is directed that
before the petitioner is permitted to join
the post a decision is to be taken by the
competent authority on issues raised
after giving proper opportunity to the
petitioner. In view of the above I direct
the chief Engineer of Anusandhan Avam
Niyojan,
Jal
Sansadhan
Prakhand,
Varanasi to issue a notice to the
petitioner
regarding
the
allegation
against the selection and alleged forgery
in the appointment and after considering
the
records,
documents
and
earlier
enquiry and explanation and material
submitted by the petitioner take a proper
decision in the matter. If the petitioner
wants oral hearing he may be allowed to
do so and if petitioner gives only written
statement submission that would be
treated to be sufficient that he has been
heard
properly.
The
petitioner's
continuance to the post and providing
other benefits will depend upon the
decision to be taken by the Chief
Engineer of the above department. The
Chief Engineer will issue proper notice to
the petitioner within a period of two
months from the date of receipt of
certified copy of this judgment and after
receiving
the
explanation
from
the
petitioner after hearing the petitioner,
after providing opportunity of hearing or
after considering the written submission
of the petitioner shall pass final order
within a period of six months from today.

With these observation the order dated
20.11.1998 is sset aside and with the
above observation and direction the writ
petition is finally disposed of
Case law discussed:
1995 J.T. (6) 146
2002 (2) AWC 1550
2001 (1) UPLBEC 908
1998 (6) JT(SC) 464
1993 (6) JT 1
2002 (1) UPLBEC 352
AIR 1990 SC 307
1991 (1) SCC (Supp.) 330
AIR 1998 SC-3261
1999 (1) ESC 490 (Alld.)
1999 ESC (1) 754 (Alld.)
1999 (1) UPLBEC 575
JT 1998 (6) 55 (SC)
JT 1998 (3) SC 123
AIR 1994 SC-2166
1997 SC-1629
JT 2000 (Supply 2) SC 417

## Text

_Characters 0–39,997 of 50,054. This is a partial read: ask again with offset=39997 for what follows._

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842 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
newspapers having wide circulation. In
these decisions it has also been held that
the grant of fishery lease cannot be
confined to societies or members of any
particular caste.
Case referred to :
2002(93) RD 659, 2003 (95) RD 84, 1995 (90)
RD 186

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
parties.

2. The petitioner has challenged the
impugned
order
dated
12.5.2003
Annexure-2 to the writ petition by which
fishery
lease has been
granted
to
respondent no. 6.

3. It has been held in several
division bench decisions of this Court that
fishery lease can only be granted by
public
auction/public
tender
after
advertising the same in well known
newspapers having wide circulation in
which all persons can bid vide Ram
Bharosey Lal vs. State of U.P. 2002 (93)
RD 659, Diwaker Rai vs. SDO 2003 (95)
RD 84, Panchoo Vs. Collector 1995 (90)
RD 186 etc. that fishery lease can only be
granted by a public auction/public tender
after advertising it in well known
newspapers having wide circulation. In
these decisions it has also been held that
the grant of fishery lease cannot be
confined to societies or members of any
particular caste.

4. Sri Ashok Mehta learned counsel
for the respondent no. 6 has admitted that
the fishery lease in question was granted
to respondent no. 6 without holding
public auction and without advertising the
same in well known newspapers having
wide circulation. Thus it is evident that
the grant of fishery lease to the
respondent no. 6 was wholly illegal. The
impugned order is therefore quashed.

5. The petition is allowed.

6. The District Magistrate shall now
proceed to hold public auction/public
tender
of
the
fishery
lease
after
advertising it in well known newspapers
having wide circulations and allowing
everyone to bid. This should be done at
the earliest. As an interim measure we
direct the District Magistrate through his
officials to operate the fishery rights in
the pond in question.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 23.5.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 2978 of 1999

Shashi Kant Pandey

...Petitioner
Versus
Executive Engineer, Anusandhan Avam
Niyojan,
Jal
Sansadhan
Prakhand,
Varanasi and another
 ...Respondents

Counsel for the Petitioner:
Sri S.K. Varma
Sri Sidhartha Varma

Counsel for the Respondents:
Sri M.C. Chaturvedi
S.C.

Constitution
of
India,
Article
226termination order-appointment on the
post
of
Sinch
Paryavekshak-Sinch
Parveshak
Sangh
made
complaintalleging the appointment to be fictitious-
in enquiry report dated 12.9.94 found
innocent-after submitting reply to the
chares-No any enquiry held-dismissal
http:\\allahabadhighcourt.nic.in
3 All] S.K. Pandey V. E.E., Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and anr. 843
order
passed
in
utter
violation
of
principle of natural justice- held- order
of dismissal cannot sustained, but before
the joining, the Chief Engineer directed
to pass appropriate order considering
the records if the petitioner desires oral
hearing may be allowed- continuance on
the post and other benefit shall depend
upon the decision.

Held- Para 23

I have heard learned counsel for the
parties. I find that in view of the serious
allegations against the selection grade
doubt has been raised with regard to the
selection,
appointment
and
alleged
involvement of forgery on the part of the
petitioners, although the order dated
20.11.1998 is not legally sustainable for
lack of providing opportunity of natural
hearing therefore, it is directed that
before the petitioner is permitted to join
the post a decision is to be taken by the
competent authority on issues raised
after giving proper opportunity to the
petitioner. In view of the above I direct
the chief Engineer of Anusandhan Avam
Niyojan,
Jal
Sansadhan
Prakhand,
Varanasi to issue a notice to the
petitioner
regarding
the
allegation
against the selection and alleged forgery
in the appointment and after considering
the
records,
documents
and
earlier
enquiry and explanation and material
submitted by the petitioner take a proper
decision in the matter. If the petitioner
wants oral hearing he may be allowed to
do so and if petitioner gives only written
statement submission that would be
treated to be sufficient that he has been
heard
properly.
The
petitioner's
continuance to the post and providing
other benefits will depend upon the
decision to be taken by the Chief
Engineer of the above department. The
Chief Engineer will issue proper notice to
the petitioner within a period of two
months from the date of receipt of
certified copy of this judgment and after
receiving
the
explanation
from
the
petitioner after hearing the petitioner,
after providing opportunity of hearing or
after considering the written submission
of the petitioner shall pass final order
within a period of six months from today.

With these observation the order dated
20.11.1998 is sset aside and with the
above observation and direction the writ
petition is finally disposed of
Case law discussed:
1995 J.T. (6) 146
2002 (2) AWC 1550
2001 (1) UPLBEC 908
1998 (6) JT(SC) 464
1993 (6) JT 1
2002 (1) UPLBEC 352
AIR 1990 SC 307
1991 (1) SCC (Supp.) 330
AIR 1998 SC-3261
1999 (1) ESC 490 (Alld.)
1999 ESC (1) 754 (Alld.)
1999 (1) UPLBEC 575
JT 1998 (6) 55 (SC)
JT 1998 (3) SC 123
AIR 1994 SC-2166
1997 SC-1629
JT 2000 (Supply 2) SC 417

(Delivered by Hon'ble R.B. Misra, J.)

Being agrived by the order of
removal dated 20.11.1998 the petitioner
has filed this writ petition for direction to
the respondents to reinstate the petitioner.

1. I have heard learned counsel for
the petitioner as well as learned counsel
representing the respondents.

2. The relevant facts necessary for
adjudication of this writ petition are that
the petitioner was appointed to the post of
Seenchpal on a temporary basis in Sinchai
Khand, Second Division, Deoria. He
joined the post on 3.11.1987 and
thereafter the petitioner was posted at
different places including pump canal
division (II), Ghazipur from 30.6.1994 to
3.2.1997, the petitioner remained at Sichai
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844 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Nirman Khand, Ghazipur on 4.2.1997,
thereafter,
he
was
transferred
to
Anusandhan
Avam
Niyojan,
Jal
Sansadhan
Khand,
Varanasi.
The
petitioner's services were made permanent
by an order dated 24.7.1993 w.e.f.
7.2.1991. It appears that the petitioner
also appeared in the examination of
Seenchpal Parivekshak and he was
declared successful on 22.3.1994. The
President of Seenchpal Sangh Lucknow
made a complaint to the Chief Engineer,
Varanasi that the appointment of the
petitioner was fictitious. On superferous
preliminary enquiry made by Executive
Engineer on 12.9.1994 the petitioner was
found to be innocent, however, the salary
of the petitioner for the month of
November 1997 and for subsequent
period was stopped and he was placed
under suspension by an order dated
6.12.1997.

3. The writ petition no. 42374 of
1997 filed by the petitioner was disposed
of on 17.12.1997 and the suspension order
dated 6.12.1997 was quashed as no
departmental
enquiry
against
the
petitioner was pending.

4. It appears that prior to passing the
above order by High Court there was
already a confidential intimation by one
Chief Engineer (Karmik) to another Chief
Engineer of Irrigation Department of the
records that there were complaints which
arose suspicion about the credibility of all
Seenchpal/ Seenchpal Parivekshak as
many of them have managed such
appointments by forgoing and fabricating
documents of initial appointment orders.
These records/documents were to be
scrutinized thoroughly because by such
forgery the State Government has been
defrauded affecting State Exchequer and
if necessary, the First Information Report
(F.I.R.) were to be lodged in such scandal
for taking legal action against them. In
reference to the records of petitioner
another order dated 23.1.1998 was passed
by the Executive Engineer placing the
petitioner
under
suspension
on
the
following charges;

(i) For forging the documents and
fraudulently procuring the appointment to
post of Seenchpal on 3.11.1987 in Sichai
Khand Division-II.
(ii) For
defrauding
the
Irrigation
Departments by Forging documents.
(iii) For causing financial loss and
damage to the State Government by
fabricating the forged appointment.

5. The writ petition no. 6334 of 1998
challenging the above suspension order
was dismissed on 26.2.1998 by this Court.
Against this order a Special Appeal No.
269 of 1998 had been filed which was
pending consideration, in the meanwhile
the Executive Engineer served a charge
sheet on 2.6.1998 to the petitioner
expected reply of petitioner by 30.6.1998.
The detail reply was filed by the
petitioner in the extended time. It appears
after submission of the reply removal
order dated 20.11.1998 was passed
(annexure 14 to the writ petition) based
on the enquiry report dated 23.5.1998
with indications that the petitioner had
prepared forged documents in respect of
his initial appointment to the post of
Seencpal
and
had
managed
forged
signature and seal of officers in his
service record to get the posting in the
district Deoria and subsequently managed
his
transfer
fraudulently
on
forged
transfer orders dated 12.8.1998 as if
issued by Chief Engineer.
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3 All] S.K. Pandey V. E.E., Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and anr. 845
6. The counter affidavit has been
filed on behalf of the respondents
indicating that the petitioner was never
appointed on 15.10.1987 as alleged by
him rather he manufactured false and
fabricated documents of appointment and
in an enquiry made in this respect the
Executive Engineer Seechai Khand-II,
Deoria by his letter no. 178/Seenchai -2
E-9 dated 22.1.1998 had informed that the
office order no. 4/87 and the letter no.
2738 dated 15.10.1987 in question was
never issued from his office. According to
the Executive Engineer in the dispatch
register 3/87 to 8/87 (page no. 6 to 298)
on page no. 165 the last letter was issued
on 31.12.1987 by letter no. 2640. It was
further clarified that for the year, the
office order at serial no. 1 and continued
upto serial no. 381 dated 6.8.1988 and the
office order no. 44/87 (85-86) allegedly
purported to have been issued by letter no.
1913 of the Executive Engineer on
11.7.1985 was never issued for the
petitioner. According to para 5 of the
counter affidavit, Sri Anand Mohan
Prasad, Assistant Engineer by a letter no.
271/Memo,
dated
27.1.1998
to
the
Executive Engineer and on personal
contract obtained the specimen signature
of Sri R.K. Pandey, Superintending
Engineer (copy of which is annexure CA2 to the writ petition) which on a
comparison apparently differs to the
forged signature of Sri R.K. Pandey
shown by the petitioner in his service
book.

7. On the first page of the service
book of the petitioner there appears to be
the signature of Assistant engineer, IInd,
Seenchai Khand II, Deoria as at the
relevant time in the year 1987, one Sri
Azaz Aalam was working as a Assistant
Engineer after transfer of Sri Azazz Alam,
was now working at Fatehpur, an inquiry
committee consisting of Mr. R.K. Misra,
when contacted to Sri Azaz Alam the later
by his letter no. 22/Sa.Aa. III/- dated
9.3.1998 alongwith his three specimen
signatures informed that the alleged
signature is not his signature.

8. In respect of verification of
Service Book and regarding payment
from
3.11.1987
to
31.8.1988,
the
Executive Engineer Seechai Khand-II
Deoria by his letter no. 178/Se.Sa-2
Deoria/E-9 dated 22.1.1998 informed that
no salary was paid to the petitioner during
above period.

9. It has been contended on behalf of
the respondents that in respect of alleged
transfer of petitioner from Deoria to
Narainpur one Sri Indrasena a staff officer
(E-4 K ha) by his D.O. letter no. 373 (E-4
Kha) dated 31.3.1988 has informed that
the letter no. 5555/E-4 Kha-B-203 E/Sa.
Estha/87-88, dated 12.8.88 was never
issued from his office and established that
transfer order dated 12.8.88 was forged
one by subsequent forged transfer order
the petitioner came to Narainpur Head
Work Division Varanasi Seenchpal from
Deoria on 7.11.1988. It has also been
pointed out in the counter affidavit that
full fledged enquiry was conducted by the
inquiry officer and the appeal lies before
the Chief Engineer against the order dated
20.11.1998 and thereafter before the
Public
Service
Tribunal.
In
these
circumstances writ petition filed by the
petitioner is liable to be dismissed.

10. Through the rejoinder affidavit
filed on behalf of the petitioner, the
petitioner has tried to built a case that
after the appointment and different
transfer orders having been made and
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846 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
after allowing him to appear in the
examination of promotion in the post of
Seenchai
Parivekshak
his
initial
appointment and subsequent steps are
treated to be legalized by the State
Government.

11. It has been submitted on behalf
of the petitioner as follows: -

(a) The two inquiries were held earlier in
regard to the validity of the petitioner's
appointment. The first report was made
on 12.4.1993 by the Executive Engineer,
Deoria, after making inquiries. (annexure
no. 4 to the writ petition). It was found
that the petitioner's appointment was
perfectly valid. Again on 12.9.1994 the
Executive Engineer, Deoria (annexure no.
6 to the writ petition) reported to the
Superintending
Engineer
that
the
petitioner's
initial
appointment
was
perfectly valid. Thus after two inquiries it
was
found
that
the
petitioner's
appointment was perfectly valid and thus
the two reports could not be ignored
without giving any opportunity of hearing
to the petitioner.

(b) On 24.7.1993 the petitioner was
made
permanent
with
effect
from
7.2.1991 after holding an inquiry in
regard to the validity of the petitioner's
initial appointment.

(c) The
Chief
Engineer
has
been
dictating his subordinate authorities for
suspending the petitioner and for taking
action. (Annexure no. 9 to the writ
petition). In fact the Chief Engineer ought
not to have dictated his subordinate
authorities for taking action against the
petitioner. This meant that the orders of
suspension and dismissal were passed on
the dictation of the superior authority and
it became ip-so-facto illegal, for which
the petitioner has placed reliance on 1995
(6) Judgment Today page 146 (S.C.)
(Aanirudhsinhji Karansinhji Jadeja &
another. Vs. The State of Gujrat).

(d) In reference to the infringement of
natural justice the petitioner has submitted
that in the instant case only a charge sheet
was
submitted
to
the
petitioner.
(Annexure no. 11 to the writ petition).
The petitioner replied to the charge sheet
(Annexure no. 12 to the writ petition).
Thereafter there was absolutely no inquiry
of any sort and the petitioner was never
taken into confidence. He did not know
anything about the inquiry itself. No
witness was ever examined by the
opposite parties in the presence of the
petitioner. The opposite parties had the
duty to inform the petitioner about the
date, place and other details of the
inquiry, but nothing of the sort was done.
It appears that some sort of exparte
inquiry was done by the opposite parties
without the participation of the petitioner
in the inquiry. Thereafter the impugned
order of dismissal was passed. Paragraph
no. 16 of the writ petition has not been
replied at all by the opposite parties and in
a very cursory manner it has been stated
that a full fledged inquiry was done (in
paragraph 15 of the counter affidavit).
There was a blatant violation of the
principles of natural justice. It was the
duty of the respondent to have allowed
the petitioner to participate in the inquiry.
The petitioner had to be taken into
confidence before an inquiry report was
given. No such thing was ever done. In
the instant case the petitioner only knows
this much that he was given a charge
sheet and he replied to it and thereafter
the order of dismissal was passed.
(Annexure no. 14 to the writ petition). In
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3 All] S.K. Pandey V. E.E., Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and anr. 847
this respect the petitioner has placed
reliance on 2002(2) AWC 1550 ( Neeraj
Bhardwaj vs. Marathwada Institute of
Technology
and
others),
2001
(1)
UPLBEC 908 ( K.P. Girl vs. State of UP
and others) and 1998 (6) Judgment Today
(SC) 464 (Basudeo Tiwary vs. Sido
Kanhu University and others ).

(e) According to the petitioner he was
not supplied with a copy of the inquiry
report, which had been prepared exparte,
without giving an opportunity of hearing
to
the
petitioner
and
without
the
petitioner's participation in the inquiry.
This also was an infringement of the
principles of natural justice. The inquiry
report was relied upon by the disciplinary
authority while removing the petitioner
and thus it was the bounden duty of the
Disciplinary Authority to have heard the
petitioner after giving the enquiry report.
The inquiry report was prepared in an
exparte manner by one D. Singh and the
order of dismissal was passed by one R.P.
Singh and thus there were two entities.
The inquiry officer as well as the
Disciplinary Authority were not one and
the same person as referred in 1993 (6) JT
page
1 (Managing
Director,
ECIL,
Hyderabad vs. B. Karunakar).

(f) If we peruse the dismissal order
(Annexure no. 14 of the writ petition) we
find that not even point raised by the
petitioner in his defence, was taken into
account while passing the order of
dismissal.

Basically the order of dismissal has
been
passed
without
giving
any
opportunity of hearing to the petitioner
and thus there was a gross violation of the
principles of natural justice in every
respect possible and thus it shall be in the
interest of justice that the order of
dismissal may be set aside. Since, there
was a violation of principles of natural
justice
the
order
this
purpose the
petitioner has placed reliance on AIR
1999 SC 22 (Whirlpool Corporation vs.
Registrar of Trade Marks, Mumbai and
others).

12. In 2002 (1) UPLBEC 352, Ram
Vikas Vs. State of U.P. and others the
appointment of employee writ petitioner
of Government Medical Hospital was
cancelled on the basis of the alleged
irregularities in the selection process and
on enquiry made for the purpose by
higher authorities the Government passed
order of cancellation of appointment of
writ petitioner. Such cancellation of
appointment was held illegal and the
appointment was cancelled without any
opportunity of hearing to the writ
petitioner. This Court in para 11 has
observed as below: -

"In the present case since the
petitioner has joined and was working, the
cancellation of his appointment would
have adversely affected his right which
required a notice on the issues which have
been raised in enquiry report dated
20.4.1996 petitioner ought to have given
an opportunity to have his say. May it be,
that the petitioner in his reply could not
have stated any fact which would have
dispelled the charges levelled against the
selection proceedings but justice must not
only be done should always seem to be
done. In all fairness and in conformity
with the principle of natural justice notice
ought to have been given to the
petitioners."

13. The foremost submission which
has been raised by the Counsel for the
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848 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
petitioner is regarding the violation of
principle of natural justice. Counsel
submitted that the petitioner having
already been appointed and working his
appointment
could
not
have
been
cancelled without notice. Counsel for the
petitioner in support of his submission
that
notice
was
required
before
cancellation of the appointment has
placed reliance on the following cases :

(I)
Shridhan
Vs.
Nagar
Palika,
Jaunpur, AIR 1990 SC 307.
(II)
Shrawan Kumar Jha Vs. State of
Bihar, AIR 1991 (suppl.) (1) SCC
330.
(III) Basudeo Tiwary V. Sido Kanhu
University and others, AIR 1998
Supreme Court 3261.
(IV) Pancham Ram and others Vs. Chief
Engineer, UP Jal Nigam and others,
1999 (1) ESC 490 (All), (1999) 1
UPLBEC 537.
(V)
Sanjeev Kumar and others vs. State
of U.P. and others 1999 (1) ESC
754 (All) (1999) 1 UPLBEC 575.

14. Learned Standing Counsel on
the other hand relied on the judgment of
the Apex Court in Ashwani Kumar and
others Vs. State of Bihar and others,
reported in JT 1997 (1) SC 243. The Apex
Court has considered the question of
natural justice in large number of cases. In
Shridhar Vs. Nagar Palika, Jaunpur
(supra) the Apex Court held that it is
elementary principle of natural justice that
no person should be condemned with out
hearing. In paragraph it was held :

"8. The High Court committed
serious error in upholding the order of the
Government dated 13.2.1980 in setting
aside the appellant's appointment without
giving any notice or opportunity to him.
It is an elementary principle of natural
justice
that
no
person
should
be
condemned without hearing. The order of
appointment conferred a vested right in
the appellant to hold the post of Tax
Inspector, that right could not be taken
away without affording opportunity of
hearing to him. Any order passed in
violation of principle of natural justice is
rendered void. There is no dispute that the
Commissioner's order had been passed
without affording any opportunity of
hearing to the appellant, therefore, the
order was illegal and void. The High
Court
committed
serious
error
in
upholding the Commissioner's order
setting aside the appellant 's appointment.
In this view, order of the High Court and
the Commissioner are not sustainable in
law."

15. In Shrawan Kumar's case was
also a case in which appointments were
cancelled by the Deputy Development
Commissioner on the ground that the
Deputy Superintendent Education had no
authority to make appointment. Apex
Court held that the impugned order
cancelling the appointment was liable to
be quashed on the ground that the
appellant therein had not been given
opportunity of hearing before cancelling
the appointment. Basudeo Tewari in a
case in which in accordance with the
provisions of Section 35 (3) of the Bihar
University Act, 1951 services were
terminated on the ground that the
appointment was irregular. Section 35 (3)
of the act provides:

"35
(3)
Any
appointment
or
promotion
made
contrary
to
the
provisions of the Act, Statutes, Rules or
Regulations or in any irregular or
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3 All] S.K. Pandey V. E.E., Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and anr. 849
unauthorized manner shall be terminated
at any time without notice."

16. Exercising the power under
section 35 (3) of the act order was passed
which was challenged before the High
Court. In paragraph 12 of the judgment
the Apex Court laid down:

"12. The said provision provides that
an appointment could be terminated at
any time without notice if the same had
been made contrary to the provisions of
the Act, Statutes, Rules or Regulations or
in any irregular or unauthorized manner.
The condition precedent for exercise of
this power is that an appointment had
been made contrary to Act, Rules,
Statutes and Regulations or otherwise. In
order to arrive at a conclusion that an
appointment is contrary to the provisions
of the Act, Statutes, Rules or Regulation
etc. a finding is recorded, the termination
cannot be made, but to arrive at such a
conclusion necessarily an enquiry will
have to be made as to whether such
appointment
was
contrary
to
the
provisions of the Act etc. If in a given
case such exercise is absent, the condition
precedent stands unfulfilled. To arrive at
such a finding necessarily enquiry notice
will have to be held and in holding such
an enquiry the person whose appointment
is under enquiry will have to be issued to
him. If notice is not given to him then it is
like playing Hamlet without the Prince of
Denmark, that is if the employee
concerned whose rights are affected, is
not given notice of such a proceeding and
a conclusion is drawn in his absence, such
a conclusion would not be just, fair or
reasonable as noticed by this Court in
DTC Mazdoor Sabha's case, AIR 1991
SC 101. In such an event we have to hold
that hearing for the purpose of arriving at
a conclusion that an appointment had
been made contrary to the Act, Statutes,
Rules or Regulations etc. and it only on
such a conclusion being drawn, the
services
of
the
persons
could
be
terminated without further notice. That is
how section 35 (3) in this case will have
to be read."

The other judgments cited by the
counsel for the petitioner do support the
contention of the petitioner that he was
entitled for notice before cancelling his
appointment. In the present case since the
petitioner has joined and was working, the
cancellation of his appointment would
have adversely affected his right which
required a notice on the issues which have
been raised in enquiry report dated
20.4.1996. Petitioner ought to have given
an opportunity to have his say. May it be,
that the petitioner in his reply could not
have stated any fact which would have
dispelled the charges leveled, against the
selection proceeding but justice must not
only be done but should always seem to
be done. In all fairness and in conformity
with the principle of natural justice notice
ought to have been given to the petitioner.
The reliance place by the learned
Standing Counsel on the case of Ashwani
Kumar
and
others
(supra)
is
not
applicable on the facts of the present case.
In Ashwani Kumar's case the Apex Court
while dealing with the question of natural
justice had observed that the principle of
natural justice is observed in that case
since public notices were given to the
petitioners of that case and all other
employees
have
submitted
their
explanations. In the aforesaid case the
High Court had directed the State
Government to appoint the committee and
thoroughly investigate the entire matter in
pursuance of which the committee issued
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850 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
notices to all the affected persons and
thereafter thus after giving opportunity
submitted its report. In Ashwani Kumar's
case against 2500 posts appointments of
6000 persons were made. The Apex Court
in that case observed:

"Thus the basic principles of natural
justice cannot be said to have been
violated
by
the
Committee
which
ultimately took decision on the basis of
the personal hearing given to the
concerned
employees
and
after
considering what they had to say
regarding their appointments. Whatever
was
submitted
by
the
concerned
employees was taken into consideration
and then Committee came to a firm
decision to the effect that all these
appointments made by Sri Malik were
vitiated from the inception and were
required to be set aside and that is how
impugned termination orders were passed
against the appellant. On the facts of these
cases, therefore, it cannot be said that
principles of natural justice were violated
or full opportunity was not given to the
concerned employees to have their say in
the matter and before their appointments
were recalled and terminated."

17. In J.T. 1998 (6) SC page 55,
State of U.P. Vs. Shatrughan Lal &
another it was held:
"One of the principles of natural
justice is that a person against whom an
action is proposed to be taken has to be
given an opportunity of hearing. This
opportunity and not a mere pretence. In
departmental proceedings where charge
sheet is issued and the documents which
are proposed to be utilized against that
person are indicated in the charge sheet
but copies thereof are not supplied to him
in spite of his request, and he is, at the
same time, called upon to submit his
reply, it cannot be said that an effective
opportunity to defend was provided to
him (Para 4)".

"Preliminary
inquiry
which
is
conducted invariably on the back of the
delinquent
employee
may,
often
,
constitute the whole basis of the charge
sheet. Before a person is, therefore, called
upon to submit his reply to the charge
sheet, he must, on a request made by him
in that behalf, be supplied the copies of
the statements of witnesses recorded
during
the
preliminary
enquiry
particularly
if
those
witnesses
are
proposed
to
be
examined
at
the
departmental trial. (para 6)".

"Merely saying that the respondent
could have inspected the documents at
any time is not enough. He has to be
informed that the documents, of which the
copies were asked for by him may be
inspected. The access to record must be
assured to him. The respondent was not
afforded an effective opportunity of
hearing particularly as the appellant failed
to establish that non supply of the copies
of statements recorded during preliminary
enquiry had not caused any prejudice to
the respondent in defending himself. (Para
8, 10)".

18. In J.T. 1998 (3) SC 123, State of
Andhra Pradesh vs. N. Radha Kishan it
was held :

"In considering whether delay has
vitiated the disciplinary proceedings the
Court has to consider the nature of
charge, its complexity and on what
account the delay has occurred. If the
delay is unexplained prejudice to the
delinquent employee is writ large on the
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3 All] S.K. Pandey V. E.E., Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and anr. 851
face of it. It could also be seen as to how
much disciplinary authority is serious in
pursuing
the
charges
against
its
employee.
Disciplinary
proceedings
should be allowed to take its course as
per relevant rules but then delay defeat s
justice. Delay causes prejudice to the
charged officer unless it can be shown
that he is to blame for the delay or when
there is proper explanation for the delay
in
conducting
the
disciplinary
proceedings. Ultimately, the court is to
balance these two diverse considerations.
(Para 19)"

"It is not possible to lay down any
predetermined principles applicable to all
cases and in all situations where there is
delay in concluding the disciplinary
proceedings. Whether on that ground the
disciplinary
proceedings
are
to
be
terminated each case has to be examined
on the facts and circumstances in that
case. The essence of the matter in that the
Court has to take into consideration all
relevant factors and to balance and weigh
them to determine if it is in the interest of
clean and honest administration that the
disciplinary
proceedings
should
be
allowed
to
terminate
after
delay
particularly when delay is abnormal and
there is no explanation for the delay. (Para
19).

"Charges have been framed against
the respondent merely on the basis of the
report dated November 7, 1987 from the
Dirctor General, Anti Corruption Bureau,
which is of general in nature raising
accusing fingers on the various officers of
the
Corporation,
but
without
any
reference to the relevant files and pin
pointing if respondent or any other
official charged was at all concerned with
the alleged deviations and unauthorized
construction in multi storied complexes.
(Para 15)"

"If memo of charge had been served
for the first time before 1991 there would
have been no difficulty. However, in the
present case it could be only an
irregularity and not an illegality vitiating
the inquiry proceedings in as much as
after the Inquiry officer was appointed
under memo no. 1412 dated December
22, 1987, there had not been any progress,
If a fresh memo is issued on the same
charges against the delinquent officer it
cannot be said that any prejudice has been
caused to him. (Para 17)

"The case depended on records of the
Department only and Director General,
Anti Corruption Bureau had pointed out
that no witnesses had been examined
before he gave his report. The Inquiry
Officer, who had been appointed one after
the other, had just to examine the records
to see if the alleged deviations and
constructions
were
illegal
and
unauthorized and then as to who was
responsible for condoning or approving
the same against the bye laws. It is no
body's case that respondent at any stage
tried to obstruct or delay the inquiry
proceedings. The Tribunal rightly did not
accept the explanations of the State as to
why delay occurred. In fact there was
hardly
any
explanation
worth
consideration. In the circumstances the
Tribunal was justified in quashing the
charge memo dated July 31, 1995 and
directing the State to promote the
respondent as per recommendation of the
DPC ignoring memos dated October 27,
1995 and June 1, 1996 (Para 20)."

19. It is also relevant to note that in
AIR 1994 SC 2166 Krishan Yadav and
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852 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
another Vs. State of Haryana and others,
where the selection of Taxation Inspectors
was cancelled because the selection
process was stinking, conceived in fraud
and
delivered
in
deceit,
therefore,
cancellation of the entire selection was
upheld and the plea of innocence of
selectees was found not tenable and
selectees were not required to repay salary
and perks. It was observed in Krishan
Yadav (supra) as below: -

"As regards the selection made
without
interview,
fake
and
ghost
interviews, tempering with the final
records, fabricating documents, forgery,
an inference that all was motivated by
extraneous consideration can be drawn.
The entire selection thus is arbitrary and
is liable to be set aside. The plea that
innocent
candidates
should
not
be
penalized for the misdeeds of others is not
applicable to such cases. The effect of
setting aside the selection would mean the
selectees will have no right to go to the
office. Normally they will have to repay
the entire salary and perks which they
have received from the said office. The
court however refused to order repayment
in this case."

20. In AIR 1997 SC 1629, Ashwani
Kumar and others Vs. State of Bihar and
others, where the recruitment in T.B.
Eradication
Programme
of
State
Government to the post of Class III and
Class IV employee made in derogation to
the
prescribed
procedure
for
the
recruitment laid down by the State
Government and without sanctioned post
backed by financial budget approval was
found ex facie illegal and not binding on
the State Govt. and was found not
contradictory to the provisions of Article
16 of the Constitution and the employees
so recruited and for regularization in
service were treated to be illegal in
respect of their entry into service and as a
total disregard of recruitment rules or
being not on existing vacancy, as such no
case of regularization was possible. The
Supreme Court in Ashwani Kumar
(supra) observed as below: -

"13. In this connection it is pertinent
to note that question of regularization in
any service including any Government
service may arise in two contingencies.
Firstly, if on any available clear vacancies
which are of a long duration appointments
are made on ad hoc basis or daily wage
basis by a competent authority and are
continued from time to time and if it is
found that the concerned incumbents have
continued to be employed for a long
period of time with or without any
artificial breaks, and their services are
otherwise required by the institution
which employs them, a time may come in
the service career or such employees who
are continued on ad hoc basis for a given
substantial length of time to regularise
them so that the concerned employees can
give their best by being assured security
of tenure. But this would require one pre
condition that the initial entry of such an
employee must be made against an
available
sanctioned
vacancy
by
following the rules and regulations
governing such entry. The second type of
situation in which the question of
regularisation may arise would be when
the initial entry of the employee against
an available vacancy is found to have
suffered from some flaw in the procedural
exercise though the person appointing is
competent
to
effect
such
initial
recruitment and has otherwise followed
due procedure for such recruitment. A
need may then arise in the light of the
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3 All] S.K. Pandey V. E.E., Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and anr. 853
exigency of administrative requirement
for waiving such irregularity in the initial
appointment by competent authority and
the irregular initial appointment may be
regularised and security of tenure may be
made
available
to
the
concerned
incumbent. But even in such a case the
initial entry must not be found to be
totally illegal or in blatant disregard of all
the established rules and regulations
governing such recruitment. In any case
back door entries for filling up such
vacancies have got to be strictly avoided.
However, there would never arise any
occasion for regularizing the appointment
of an employee whose initial entry is
tainted and is in total breach of the
requisite procedure of recruitment and
especially when there is no vacancy on
which such an initial entry of the
candidate could even be effected. Such an
entry of an employee would remain
tainted from the very beginning and no
question of regularizing such an illegal
entrant
would
ever
survive
for
consideration, however competent the
recruiting agency may be. The appellants
fall in this latter class of cases. They had
no case for regularisation and what ever
purported regularisation was effected in
their favour remained an exercise in
futility."

"16. So far as the principles of
natural justice are concerned it has to be
stated at the outset that principles of
natural justice cannot be subjected to any
strait- jacket formula. They will vary from
case to case, from circumstance to
circumstance and from situation to
situation. Here is a case in which 6000
employees were found squatting in the
Tuberculosis
Scheme
controlled
and
monitored by Dr. Mallick for the entire
State of Bihar and there was no budgetary
sanction for defraying their expenditure.
At least out of 6000 employees as seen
earlier 3750 were totally unauthorized and
were squatting against non existing
vacancies. A grave situation had arisen
which required immediate action for
clearing the stables and for eradicating the
evil effects of these vitiated recruitments
so that the Tuberculosis Eradication
Scheme could be put on a found footing.

xxx
xxx
xxx

Whatever was submitted by the concerned
employees was taken into consideration
and then the committee came to a firm
decision to the effect that all these
appointments made by Dr. Mallick were
vitiated from the inception and were
required to be set a side and that is how
the impugned termination orders were
passed against the appellants. On the facts
of these cases, therefore, It cannot be said
that principles of natural justice were
violated or full opportunity was not given
to the concerned employees to have their
say
in
the
matter
before
their
appointments
were
recalled
and
terminated. Point No. 3 is, therefore,
answered in the negative.

"17... The initial entry of the
employees is itself unauthorized being not
against sanctioned vacancies nor was Dr.
Mallick entrusted with the power of
creating vacancies or posts for the
schemes
under
the
Tuberculosis
Eradication Programme. Consequently the
termination of the services of all these
appellants cannot be found fault with. Nor
any relief as claimed by them of
reinstatement with continued service can
be made available to them."
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854 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
21. In J.T. 2000 (Suppl.