# Bhwendra Nath Borah v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-04
- **Case number:** Writ A No. 56246 of 2014
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhwendra-nath-borah-v-state-of-u-p-ors-51647
- **Pages:** 17

## Headnote

Service Law - Disciplinary Proceedings
and Principles of Natural Justice -
Petitioner, a Class IV employee (Library Peon) at
Government
Degree
College,
Sambhal,
challenged
his
termination
orders
dated
29.09.2014 and 01.10.2014, alleging procedural
irregularities - Held, the disciplinary proceedings
were vitiated due to non-compliance with
principles of natural justice, specifically the
failure to supply the enquiry report to the
petitioner and the absence of a show cause
3 All. Bhwendra Nath Borah Vs. State of U.P. & Ors.
773
notice
for
the
proposed
punishment,
as
mandated
by

Managing
Director,
ECIL,
Hyderabad Vs B. Karunakar - The enquiry
officer's failure to conduct an oral enquiry
despite the petitioner's denial of charges further
violated procedural fairness, as established in
Salahuddin Ansari Vs St. of U.P. and St. of U.P.
Vs T.P. Lal Srivastava . (Paras 14, 24, 27, 29,
30, 31, 33, 34)

Service Law - Validity of Enquiry Officer's
Findings - The enquiry officer's report dated
21.06.2014 failed to conclusively establish the
petitioner's guilt on charges of insubordination
and false allegations against the Manager and
Principal - Held, the enquiry officer did not hold
an
oral
enquiry,
examine
departmental
witnesses, or verify affidavits, rendering the
findings procedurally defective - The Regional
Joint Director of Education erred in approving
the termination without independently assessing
the enquiry report or addressing the lack of
evidence, contrary to Saroj Kumar Sinha Vs St.
of U.P. , which requires an enquiry officer to act
as an independent adjudicator. (Paras 29, 30,
32, 33, 36, 37)

Service Law - Role of Approving Authority
- The Regional Joint Director of Education,
tasked with approving the termination after a
prior
High
Court
order
quashed
earlier
proceedings, wrongly affirmed a consequential
order dated 29.09.2012, which had already
been set aside - Held, once the earlier approval
order was quashed, the Regional Joint Director
should have issued a fresh show cause notice
with the enquiry report and directed the
Principal to pass a new order, rather than
approving a defunct order - This procedural
lapse
rendered
the
termination
order
unsustainable. (Paras 23, 35, 39)

Service
Law
-
Proportionality
of
Punishment - The petitioner, a Class IV
employee with 15 years of service, was accused
of insubordination for lodging a police complaint
and an application under Section 156(3) Cr.P.C.,
alleging harassment by the Manager and
Principal - Held, in the absence of prior
complaints about the petitioner's conduct and
considering the context of his allegations during
a period when the Committee of Management
was
dissolved,
the
termination
was
disproportionate - A warning would have
sufficed, given the petitioner's long service and
the lack of evidence supporting the charges.
(Paras 40, 41)

Judicial Review - Relief in Disciplinary
Proceedings - The Court found the enquiry
procedurally
flawed
and
the
punishment
excessive, but declined to remit the matter for
fresh enquiry due to the petitioner's prolonged
litigation and status as a Class IV employee -
Held, remitting the case would be unjust given
two prior remissions and the lack of conclusive
evidence
against
the
petitioner
-
The
termination orders were quashed, and the
petitioner was awarded 50% back wages for the
period he did not work. (Paras 41, 42)
Writ Petition Allowed.

Termination Orders Dated 29.09.2014 and
01.10.2014 Quashed - Petitioner Entitled to
50% Back Wages.

List of Cases Cited :

## Text

_Characters 0–39,928 of 59,052. This is a partial read: ask again with offset=39928 for what follows._

772 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Petitioners have not brought on
record details of study material/syllabus of
referred examination in order to show that
it would sufficient upto class-V also,
whereas the Basic Teacher Certificate
course has extensive study material much
more than C.T. (Shishu Shiksha). For
reference same is mentioned below -:

First Year
Education and principles of teaching
Psychological basis of child Development
Teaching subject: Hindi, Environmental studies, Social
Studies, Mathematics, Sanskrit/Urdu, English
Cognitive Aspects: Moral Education, Physical Education
and Music, Art
Psycho Motor Aspect: Class Teaching, Curriculum
Analysis
Second Year
Emerging Trends of Elementary: Education
and
Education Evaluation, School Management, Community
Education and Health education
Teaching Methods, work experience and Relevant
Practical work: Hindi, Environmental Education, Science,
Social Studies, Mathematic, SUPW, Sanskrit/Urdu, English
Cognitive Aspects: Physical education and music
Psycho motor aspect: class room teaching, school
experience (internship) Community work and Action
research, Analysis of Curriculum and text book

24. This Court has undertaken above
exercise as Harsh Kumar (supra) has also
granted liberty to verify whether course of
a candidate would be same in terms of
notification issued by NCTE, otherwise,
U.P. Basic Shiksha Parishad (supra) is
completely against the petitioners.

25. A bare consideration of standards
of course material of Certificate Training
(Shishu
Shiksha)
and
Basic Teacher
Certificate are sufficient to observe that
course
material
of
Basic
Training
Certificate is proposed for purpose of
teaching upto Class-V, whereas course
material of CT (Shishu Shiksha) would be
limited to pre-school i.e. up to class-II only.

26. In view of aforesaid observations,
not only U.P. Basic Shiksha Parishad
(supra) is against the petitioners but above
consideration of course material of CT
(Shishu Shiksha) is not equivalent to course
material of minimum qualification i.e.
B.T.C.
for
appointment
of Assistant
Teachers.

27. Therefore, all writ petitions being
sans-merit are dismissed.

28. Interim orders are vacated and its
legal consequence shall follow.
----------
(2024) 3 ILRA 772
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 56246 of 2014

Bhwendra Nath Borah ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Durga Tiwari, Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C.

Service Law - Disciplinary Proceedings
and Principles of Natural Justice -
Petitioner, a Class IV employee (Library Peon) at
Government
Degree
College,
Sambhal,
challenged
his
termination
orders
dated
29.09.2014 and 01.10.2014, alleging procedural
irregularities - Held, the disciplinary proceedings
were vitiated due to non-compliance with
principles of natural justice, specifically the
failure to supply the enquiry report to the
petitioner and the absence of a show cause
3 All. Bhwendra Nath Borah Vs. State of U.P. & Ors.
773
notice
for
the
proposed
punishment,
as
mandated
by

Managing
Director,
ECIL,
Hyderabad Vs B. Karunakar - The enquiry
officer's failure to conduct an oral enquiry
despite the petitioner's denial of charges further
violated procedural fairness, as established in
Salahuddin Ansari Vs St. of U.P. and St. of U.P.
Vs T.P. Lal Srivastava . (Paras 14, 24, 27, 29,
30, 31, 33, 34)

Service Law - Validity of Enquiry Officer's
Findings - The enquiry officer's report dated
21.06.2014 failed to conclusively establish the
petitioner's guilt on charges of insubordination
and false allegations against the Manager and
Principal - Held, the enquiry officer did not hold
an
oral
enquiry,
examine
departmental
witnesses, or verify affidavits, rendering the
findings procedurally defective - The Regional
Joint Director of Education erred in approving
the termination without independently assessing
the enquiry report or addressing the lack of
evidence, contrary to Saroj Kumar Sinha Vs St.
of U.P. , which requires an enquiry officer to act
as an independent adjudicator. (Paras 29, 30,
32, 33, 36, 37)

Service Law - Role of Approving Authority
- The Regional Joint Director of Education,
tasked with approving the termination after a
prior
High
Court
order
quashed
earlier
proceedings, wrongly affirmed a consequential
order dated 29.09.2012, which had already
been set aside - Held, once the earlier approval
order was quashed, the Regional Joint Director
should have issued a fresh show cause notice
with the enquiry report and directed the
Principal to pass a new order, rather than
approving a defunct order - This procedural
lapse
rendered
the
termination
order
unsustainable. (Paras 23, 35, 39)

Service
Law
-
Proportionality
of
Punishment - The petitioner, a Class IV
employee with 15 years of service, was accused
of insubordination for lodging a police complaint
and an application under Section 156(3) Cr.P.C.,
alleging harassment by the Manager and
Principal - Held, in the absence of prior
complaints about the petitioner's conduct and
considering the context of his allegations during
a period when the Committee of Management
was
dissolved,
the
termination
was
disproportionate - A warning would have
sufficed, given the petitioner's long service and
the lack of evidence supporting the charges.
(Paras 40, 41)

Judicial Review - Relief in Disciplinary
Proceedings - The Court found the enquiry
procedurally
flawed
and
the
punishment
excessive, but declined to remit the matter for
fresh enquiry due to the petitioner's prolonged
litigation and status as a Class IV employee -
Held, remitting the case would be unjust given
two prior remissions and the lack of conclusive
evidence
against
the
petitioner
-
The
termination orders were quashed, and the
petitioner was awarded 50% back wages for the
period he did not work. (Paras 41, 42)
Writ Petition Allowed.

Termination Orders Dated 29.09.2014 and
01.10.2014 Quashed - Petitioner Entitled to
50% Back Wages.

List of Cases Cited :
1. Salahuddin Ansari Vs St. of U.P. & ors. , 2008
(4) ADJ 58

2. Managing Director, ECIL, Hyderabad Vs B.
Karunakar , (1993) 4 SCC 727

3. St. of Uttar Pradesh & ors. Vs Saroj Kumar
Sinha , (2010) 2 SCC 772

4. St. of U.P. & anr.Vs T.P. Lal Srivastava , 1997
(1) LLJ 831

5. U.O.I. Vs Subrata Nath , 2022 SCC OnLine SC
1617

6. Divisional Controller, Karnataka St. Road
Transport Corporation Vs M.G. Vittal Rao ,
(2012) 1 SCC 442

7. Committee of Management, Muslim Inter
College & anr.Vs St. of U.P. & ors. , 2023 (1)
ADJ 308 (DB)

8. Subhash Chandra Sharma Vs Managing
Director & anr. , 2000 (1) U.P.L.B.E.C. 541

9.
Subhash
Chandra
Sharma
Vs
U.P.
Cooperative Spinning Mills & ors. , 2001 (2)
UPLBEC 1475
774 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Laturi Singh Vs U.P. Public Service Tribunal
& ors. , Writ Petition No. 12939 of 2001,
decided on 06.05.2005

11. Indrani Bai (Smt.) Vs U.O.I. , 1994 Supp (2)
SCC 256

12. Air India Corporation Vs VSA. Rebellow ,
(referred in context of loss of confidence)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Ms. Durga Tiwari, learned
counsel for the petitioner, learned Standing
Counsel for the State respondents and Sri
Gautam Baghel, learned counsel for
respondent nos. 4, 5 & 6.

2. Petitioner Bhwendra Nath Borah
was a duly selected and appointed Class -
IV employee working in the Institution
namely
Government
Degree
College,
Sambhal prior to termination of his service
from the College Establishment by the
order passed by the Joint Director of
Education on 01.10.2014 granting approval
to the proposed punishment of termination
of service vide order dated 29.09.2014.

3. This case has a checkered history
with two round of litigation previously
before this Court and this is the third round
of litigation arising out of disciplinary
proceedings

4. Before coming to the orders
impugned, the facts of the case briefly
stated are that the petitioner was appointed
on 08.04.1995 on the post of Library Peon
but as he claimed, he continued to
discharge duties of Peon at the residence of
the then Manager Suresh Chandra and then
his son Shantanu Kumar. It so happened, in
the year 2011, when according to the
petitioner, the Committee of Management
was not recognized for a short time that
petitioner was given posting in the
Institution as Chowkidar under the orders
of Principal dated 11.02.2011. He protested
by writing a letter dated 12.02.2011 that
only the work of Peon should be taken
from him and he is not Chowkidar but
nothing happened. He then raised legal
pleas before the District Inspector of
Schools vide letter dated 12.07.2011 that he
having been appointed as Library Peon
could not have been asked to discharge
night duties of Chowkidar and he also
complained that Principal was forcing him
to resume working at the residence of
Manager of the Institution or else remain
posted as Chowkidar.

5. It transpires that the Committee of
Management came into office in the
meantime and so suddenly on 12.10.2011
as was alleged in the letter written to the
Senior
Superintendent
of
Police,
Bheemnagar while petitioner signed the
attendance register, the Manager Suresh
Chandra and his son Shantanu Kumar and
others started abusing and threatening him
of dismissal from service and also
physically assaulted him. Thus complaint
was made on 16.10.2011 but when nothing
happened, it transpires petitioner moved an
application under Section 156(3) Cr.P.C.
which came to be dismissed on 14.04.2012.
This approach was taken by the Manager
and Principal of the Institution as a case of
serious misconduct in the nature of
insubordination and accordingly petitioner
was issued with a show cause notice on
15.02.2012 to explain his conduct of gross
indiscipline and making insidious remarks
against the Manager of the Institution
coupled with the false allegations of
physical assault. This show cause notice
was issued on 15.02.2012 to which
petitioner submitted reply on 05.03.2012
and took the plea that for 15 long years he
3 All. Bhwendra Nath Borah Vs. State of U.P. & Ors.
775
worked under pressure of Manager at his
residence like bonded labour giving 12
hours long duty and when the Committee
of Management was dissolved for a short
while that petitioner got freed from the
custody of the Manager. He claimed in his
entire reply that he had been unnecessarily
forced to discharge duty of a Chowkidar for
12 hours else he was to resume duty at the
residence of Manager, failing which action
would be taken. The Principal of the
Institution, instead of closing the matter
with the warning to the petitioner, chose to
set up an enquiry making one Advocate of
the District Court as Enquiry Officer and it
is this Advocate namely Mr. Kamal Kumar
issued charge sheet to the petitioner on
25.06.2012. Two charges were basically
leveled: one fictitious and false allegations
were made to malign the image of the
Manager of the Institution Mr. Suresh
Chandra as well as Shantanu Kumar which
amounted
to
gross
misconduct
and
insubordination; and the second charge was
regarding allegations made against one Dr.
Balendu,
the
Senior
Reader
in
the
Department of Geography and one Mr. P.K.
Agarwal, the officiating Principal in an
application filed under Section 156(3)
Cr.P.C.

6. Petitioner submitted his reply
to the charge sheet and even questioned the
appointment of an Advocate as an Enquiry
Officer in an educational institution.
However,
nothing
happened
to
his
complaint
and
the
Enquiry
Officer
submitted his report bringing home the
charges and the papers were forwarded to
District Inspector of Schools for the
purpose of approval in the matter of
dismissal from service vide letter dated
06.08.2012.

7. Admittedly, no show cause notice
was issued to the petitioner in the matter of
proposed punishment, nor the enquiry
report was supplied to him before the
Principal passed orders on 06.08.2012
accepting the report of enquiry officer
dated 01.08.2012.

8. Petitioner challenged both the
charge sheet as well as report of the enquiry
officer before this Court vide Writ - A No.
43774 of 2012. The Court, instead of
interfering with the orders, took view that
since the District Inspector of Schools as
per statute 18.02(3) remains an approving
authority to the decision of Principal and
Committee of Management in the matter of
dismissal/ termination of class - 3 and 4
employees, it would be better that the
petitioner approaches the authority who
will be looking into all such aspects as
raised in the writ petition. The operative
portion of the order dated 05.09.2012 is
reproduced hereunder:

"Petitioner's entire emphasis is
on the fact that Inquiry Officer has been
illegally appointed and coupled with this
entire inquiry proceeding is farce and on
the same no credibility should be attached.
All these things can be very well looked
into, examined and considered by the
District Inspector of Schools at the point of
time when he proceeds to take up the
matter for grant of approval. In view of this
liberty is given to the petitioner to bring on
record all such factual aspect of the matter
substantiating his version that disciplinary
proceeding is farce and violative of
principles of natural justice. In the event of
any such claim being set up by the
petitioner, the District Inspector of Schools,
Moradabad shall taken into consideration
the issues raised by the petitioner and
thereafter shall take appropriate decision
in the matter, in accordance with law, by
means of a reasoned and speaking order.
776 INDIAN LAW REPORTS ALLAHABAD SERIES

Writ petition stands disposed of
accordingly."

9. This order was communicated to
the District Inspector of Schools along with
representations
dated
11.08.2012
and
17.09.2012 and held that no such incident
as alleged to have taken place on
12.10.2011 and such an allegation made in
application under Section 156(3) Cr.P.C.
was also turned down by the Magistrate for
want of evidence and that the learned
Advocate was rightly appointed as an
enquiry officer and petitioner has been
found guilty of the serious charges of
misconduct
and
insubordination
and
accordingly he approved the order of
termination of his service.

10. This order was passed by District
Inspector of Schools on 29.07.2012. On
29.09.2012 the officiating Principal issued
order terminating the services of the
petitioner and directing him not to appear
in the Institution. These two orders came
again to be challenged before this Court
vide Writ - A NO. 52340 of 2012 but the
court declined to interfere granting liberty
to the petitioner with the agreement of
learned Advocates appearing for the parties
that matter may be heard and decided by a
higher authority namely the Joint Director
of Education and thus, the direction was
issued to District Inspector of Schools,
Moradabad to forward all the papers to the
office of Joint Director of Education, who
shall be taking decision in the matter after
giving opportunity of hearing to the
petitioner.

11. Accordingly, petitioner made a
detailed representation within the time
prescribed, on 12.12.2012 before the
Regional Joint Director of Education who
passed
a
detailed
order
finally
on
18.04.2013 with a direction that the
officiating Principal should be appointed an
enquiry officer and departmental enquiry
be held de novo. The Principal of the
Government Inter College accordingly
issued a notice on 12.02.2014 to the
petitioner that he may submit his reply by
03.03.2014 before him as well as any
teacher or non teaching staff to whom he
wanted to appear in his suport to and may
also file affidavits, petitioner demanded
time vide letter dated 20.02.2014 but it
appears that fresh enquiry was also
finalized but the report was directly
submitted to the Regional Joint Director of
Education. Thus, petitioner had come to
notice from the letter of Regional Joint
Director of Education dated 22.07.2014.
Accordingly, petitioner applied for enquiry
report under the Right to Information Act,
2005 vide letter dated 17.07.2014 but that
remain unanswered. Petitioner wrote letters
to the Regional Joint Director of Education
on 26.07.2014 and 06.08.2014 on the date
fixed, to adjourn hearing but he was not
supplied with enquiry report. Petitioner
also wrote similar letter on 30.08.2014 and
he did appear before the Regional Joint
Director of Education when the date was
fixed later on 06.08.2014 and then again on
09.09.2014. The Regional Joint Director of
Education, it transpires from the order
impugned, heard the parties and finally
concluded that the proposal moved by the
Principal of the Institution for termination
of services of the petitioner deserved
approval and accordingly vide order dated
29.09.2014 accorded approval to the
termination of the services of the petitioner.

12. In the counter affidavit that has
been filed on behalf of the Principal of the
Institution as well as the Committee of
Management,
the
entire
pleas
are
concentrated upon the act and conduct of
3 All. Bhwendra Nath Borah Vs. State of U.P. & Ors.
777
the misconduct on the part of the petitioner
in lodging complaint with the police and
also making application under Section
156(3) Cr.P.C. A legal plea is also taken
that this Court would not interfere with the
findings returned by the enquiry officer.
However, the fact pleaded by the petitioner
with regard to non supply of the enquiry
report has not at all been disputed. The
basic plea taken is that the very trust of the
Principal and Manager of the Institution,
reposed in Class - IV employee of the
Institution got absolutely eroded and,
therefore, once the confidence of the
authorities of the Institution have got
shakened in an employee, the only way out
to save the establishment is to fire such an
employee and so this Court should not
interfere in the matter.

13. In the supplementary counter
affidavit also the plea taken is that the
complaint made under Section 156(3)
Cr.P.C. having been found fictitious and
vague without there being any iota of
evidence, was rejected and this would go
on to prove that the petitioner was
deliberately making false and fictitious
allegations against the Principal and
Manager of the Institution and even dared
to
show
eyes
by
approaching
the
Superintendent of Police. Sri Baghel
submits that this is sufficient enough to
show a kind of insubordination shown by
the petitioner and, therefore, the petitioner
deserves no clemency.

14. The arguments advanced by
learned counsel for the petitioner are:

(i) The very appointment of
enquiry officer being an outsider was bad
and this question was not addressed to and
remained unanswered. Accordingly, the
very appointment being void, the enquiry
stood vitiated in law;

(ii) There was no oral enquiry
held in the matter even though charges
were specifically denied. Even at the stage
of Joint Director of Education, the enquiry
was held and was devoid of fair procedure
and sans oral enquiry.

(iii) Neither any show cause
notice was issued to the petitioner of the
proposed punishment at the point of time
when the fresh enquiry report was received
by
the
Regional
Joint
Director
of
Education, nor even the enquiry report was
supplied to; and

(iv) Charges leveled against the
petitioner were only with an intention to
punish him for his denial to work at
Manager's residence, more especially when
he complained to the Principal and the
Superintendent of Police regarding utter
harassment meted out to him. It is also
argued that there was no evidence to prove
such
charges
against
the
petitioner,
inasmuch
as,
there
was
never
any
complaint regarding work and conduct and
discharge of duties by the petitioner prior
to the solitary incident.

15. Ms. Durga Tiwari, has relied upon
the authorities of Supreme Court in the case
of Salahuddin Ansari vs. State of UP &
ors; 2008 (4) ADJ 58; Managing
Director,
ECIL,
Hyderabad
v.
B.
Karunakar, (1993) 4 SCC 727; and State
of Uttar Pradesh & Ors v. Saroj Kumar
Sinha (2010) 2 SCC 772.

16. The arguments advanced by
learned counsel appearing for the Principal
and Committee of Management are:

(i) It was a glaring example of
gross insubordination and indiscipline at
the end of a Class IV employee to have
778 INDIAN LAW REPORTS ALLAHABAD SERIES
made a false complaint of harassment and
physical assault by the Manager and his
men to the police and then to make an
application before the Magistrate under
Section 156(3) Cr.P.C. which was came to
be rejected for false allegations.

(ii) False and frivolous charges
and allegations were made only with an
intention to implicate higher authorities of
the Institution namely the Manager and the
Principal by a class IV employee to
bulldoze down them only for vested interest.
This act and conduct has completely
sheckened the confidence of employer in
employee and his continuance any further
in the Institution would not have been in
the interest of the establishment and so he
deserved no mercy and was rightly
punished for dismissal from service.

(iii) Admission is the best piece of
evidence
and
police
complaint
and
application
to
Magistrate
under
Section156(3 Cr.P.C. with a prayer to direct
police for registration of first information
report against the Manager and the
Principal , admittedly made by the
petitioner, having been dismissed for want
of evidence or intrinsic material to support
the charge, nothing more was required to
be led in the departmental enquiry to prove
the charge for this act of insubordination
and indiscipline; and there is no lacuna in
the departmental proceedings and this
Court would not interfere with the
appointment of the enquiry officer and the
enquiry report filed by him.

17. Sri Baghel has relied upon the
judgments in the case of Managing
Director,
ECIL,
Hyderabad
v.
B.
Karunakar, (1993) 4 SCC 727 and Union
of India v. Subrata Nath, 2022 SCC
OnLine SC 1617; Divisional Controller,
Karnataka
State
Road
Transport
Corporation v. M.G. Vittal Rao (2012) 1
SCC 442; Union of India v. Subrata Nath
2022 SCC OnLine SC 1617; 2023 (1)
ADJ
308
(DB),
Committee
of
Management, Muslim Inter College &
Anr v. State of U.P. & Others.

18. Sri Baghel also submitted in the
end that if this Court finds the enquiry to be
vitiated in law for any procedural defect,
this Court may remand the matter to that
stage to the authority proceed afresh in the
light of the judgment passed in Managing
Director, ECIL, Hyderabad (supra) and
Committee of Management, Muslim Inter
College (supra).

19. Having heard learned counsel for
the respective parties, their arguments
raised across the bar and having perused
the records, I find the first point that needed
to be addressed is, whether procedure was
followed by the Regional Joint Director of
Education after the matter was remitted to
him on the question of complaint of the
petitioner qua appointment of enquiry
officer and whether the Regional Joint
Director of Education has acted in
consonance with the principles of natural
justice in passing the order. The third point
that is needed to be addressed is, as to
whether the Regional Joint Director of
Education could have affirmed the earlier
approval order of District Inspector of
Schools in spite of direction issued to him
to take a fresh decision in the light of
findings. Once he himself held the earlier
enquiry report to be bad and expressed his
view that the fresh enquiry was required to
be held and accordingly, he had appointed
Principal of the Government Inter College
as new enquiry officer.

20. All the above points are
related to each other and are decided
simultaneously.
3 All. Bhwendra Nath Borah Vs. State of U.P. & Ors.
779

21. In order to find answer to the
contentious issue qua procedure part of the
enquiry as has been assailed by the learned
counsel for the petitioner and the said
allegation rebutted by learned counsel for
the
Principal
and
Manager
of
the
Institution.

22. I would here first refer to the
order passed by this Court on 08.10.2023
allowing writ petition being Civil Misc.
Writ Petition No. 52340 of 2012. It is a
very short order and therefore, in order to
appreciate the entire issue, I find it more
appropriate to reproduce the same here
itself:

"Hon'ble V.K. Shukla,J.

Earlier while matter was pending
before the District inspector of Schools,
petitioner Bhwendra Nath Borah was
before this Court and this Court on
5.9.2012 proceeded to pass following order.
Relevant extract of the order is being
quoted below:-

"Petitioner's entire emphasis is
on the fact that Inquiry Officer has been
illegally appointed and coupled with this
entire inquiry proceeding is farce and on
the same no credibility should be attached.
All these things can be very well looked
into, examined and considered by the
District Inspector of Schools at the point of
time when he proceeds to take up the
matter for grant of approval. In view of this
liberty is given to the petitioner to bring on
record all such factual aspect of the matter
substantiating his version that disciplinary
proceeding is farce and violative of
principles of natural justice. In the event of
any such claim being set up by the
petitioner, the District Inspector of Schools,
Moradabad shall taken into consideration
the issues raised by the petitioner and
thereafter shall take appropriate decision
in the matter, in accordance with law, by
means of a reasoned and speaking order.
Petitioner's entire emphasis is on the fact
that Inquiry Officer has been illegally
appointed and coupled with this entire
inquiry proceeding is farce and on the same
no credibility should be attached. All these
things can be very well looked into,
examined and considered by the District
Inspector of Schools at the point of time
when he proceeds to take up the matter for
grant of approval. In view of this liberty is
given to the petitioner to bring on record
all such factual aspect of the matter
substantiating his version that disciplinary
proceeding is farce and violative of
principles of natural justice. In the event of
any such claim being set up by the
petitioner, the District Inspector of Schools,
Moradabad shall taken into consideration
the issues raised by the petitioner and
thereafter shall take appropriate decision
in the matter, in accordance with law, by
means of a reasoned and speaking order.

Writ petition stands disposed of
accordingly."

After the said order judgement
has been delivered by this Court, petitioner
submits that same was uploaded on the
website of High Court on 17.9.2012 and
based on the same, petitioner submits that
he requested the District Inspector of
Schools to grant two weeks time to file
objection on 17.9.2012. Petitioner submits
that again letter dated 24.9.2012 was
issued fixing 26.9.2012 and said letter was
received by him at about 7.35 A.M. by
special messenger. Petitioner submits that
he requested for adjournment of one week
on medical ground and thereafter, he
submitted his objection on 29.9.2012 and
thereafter he has been served with the copy
of the order dated 27.9.2012 which is
impugned.
Petitioner
in
this
regard
submitted that entire action which has been
780 INDIAN LAW REPORTS ALLAHABAD SERIES
so taken is in violation of Principle of
natural justice and District Inspector of
Schools has colluded with the Management
of the institution concerned.

When the matter has been taken
up, this much is clear that this Court has
proceeded to pass order giving liberty to
petitioner to file all possible objection and
thereafter, District Inspector of Schools was
obliged to consider the objection so moved
on behalf of the petitioner. District
Inspector of Schools has proceeded to fix
29.8.2012 as the date of hearing and on the
said date request was made by the
petitioner
to
extend
the
date
and
accordingly next date fixed in the matter
was 7.9.2012. In between, writ petition had
been filed by the petitioner and same has
been decided on 5.9.2012 and the next date
fixed in the matter was 26.9.2012.
Petitioner on 26.9.2012 requested for
adjournment of the date and the very next
date order in question has been passed.

Once this Court had given liberty
to the petitioner to file objection and
petitioner
had
been
requesting
for
adjournment for filing objection, then
District Inspector of Schools ought to have
been reasonable by providing opportunity
of hearing to the petitioner instead of
proceeding to take decision on the premises
that no reply has been submitted to the
charge sheet in question. Order passed by
the District Inspector of Schools in the
present case, cannot be approved of
inasmuch as same is in violation of
principle of natural justice and specially
when the date fixed was 26.9.2012 and
information of the said hearing was
received in the morning itself and request
was being made to accord time to file
objection pursuant to the order passed by
this Court, but the reason best known to the
District Inspector of Schools, he has chosen
to proceed ahead and accord approval. The
District Inspector of Schools, at no point of
time, proceeded to examine the claim as to
whether in free and impartial manner
inquiry has been held or not and straight
way on the inquiry report, order was
passed that petitioner has not submitted his
reply, has proceeded to pass order, in view
of this background order passed, is hereby
quashed and set aside.

Both Ms. Durga Tiwari, Advocate
as well as Sri R.K. Ojha, Advocate
appearing along with Gautam Baghel,
Advocate agreed that if petitioner is not at
all satisfied with the District Inspector of
Schools, then matter be sent to any of the
authority, who may consider the matter of
approval, and both the parties have agreed
that matter be decided by the Joint Director
of Education of region concerned.

In view of this District Inspector
of Schools, Moradabad is directed to
transmit entire paper to the office of the
Joint Director of Education Moradabad
Region, Moradabad and Joint Director of
Education,
Moradabad
Region,
Moradabad is directed to take appropriate
decision by means of reasoned order on the
basis of papers produced and on the basis
of objection so filed on behalf of the
petitioner after providing opportunity of
hearing to the petitioner as well as
Secretary of Management.

With
these
observation,
writ
petition is allowed. "

23. Upon reading of the aforesaid
order I find that the Court very much
recorded and reproduced its earlier order
dated 05.09.2012 passed in the earlier
round
of
litigation
in
which
the
appointment of the enquiry officer was
questioned and so the enquiry proceeding
was claimed to be a farce. The Court
noticed
that
petitioner
was
given
opportunity to file objection but the District
3 All. Bhwendra Nath Borah Vs. State of U.P. & Ors.
781
Inspector of Schools proceeded to pass
order. The Court found this order of the
District Inspector of Schools to be highly
improper and arbitrary and accordingly set
aside the order of approval of dismissal of
services of the petitioner dated 26.09.2012.
The Court, with the agreement of the
parties referred the matter to the Regional
Joint Director of Education. Thus, every
aspect of the matter right from the
appointment of the enquiry officer, the
manner and procedure followed in holding
the enquiry, the proposed punishment and
the order of District Inspector of Schools
regarding approval, remained open. A very
positive direction thus got issued by this
Court and the Regional Joint Director of
Education upheld the objections of the
delinquent employee namely the petitioner
and directed for a fresh enquiry. Operative
portion of the order of Regional Joint
Director of Education dated 18.04.2013 is
reproduced hereunder:

" म ननीय उच्च धय य लय इल ह ब ि द्व र अपने
दनणाय दिन ांक 05-09- 2012 में यह थपष्ट दनणाय दिये हैं दिल
दवद्य लय दनरीक्षक मुर ि ब ि / सम्भल सेव सम दप्त अनुमोिन िेने से
पूवा य ची द्व र िॉच अदधक री सम्बधधी व अधय आपदत्तयों क
गहनत से परीक्षण करेंगे। दिल दवद्य लय दनरीक्षक मुर ि ब ि /
सम्भल क याव हक प्र च या तथ ि ाँच अदधक री द्व र दिन ांक 16-
07-2012 को यह दलखते हुए दक मैं एक अदधवि ह ाँ और िो
िशक से अदधक समय से प्रेदक्टस कर रह ह ाँ क नून और उसकी
प्रदक्रय से पररदचत ह ाँ। िी भवेधर न थ वरह द्व र अपने प्रत्य वेिनों
में म ननीय सवोच्च धय य लय के आिेश Indrani Bai
(Smt.) Vs. Union of India 1994 Supp (2)
S.C.C 256 को सांज्ञ न में लेने क उल्लेख दकय है दिसमें यदि
आरोदपत व्यदि को दनष्पक्ष ि ाँच न होने क सांिेह हो तथ वह िॉच
अदधक री को बिलकर िूसरे ि ाँच अदधक री की दनयुदि की प्र थान
करत है तब िॉच अदधक री को बिल दिय ि न च दहए थ परधतु
पत्र में न तो क यारत प्र च या, िॉच अदधक री और न ही दिल
दवद्य लय दनरीक्षक, मुर ि ब ि / सम्भल ने लेश म त्र दवच र दकय
दिसको म ननीय उच्च धय य लय इल ह ब ि ने अपने दनणाय दिन ांक
05-09-2012 में थपष्ट सांकेत दकय है।"

24. Dr. Avnish Kumari Shukla who
was the Principal of the Government
Degree College was appointed as enquiry
officer and enquiry officer gave opportunity
to the petitioner to appear on 03.03.2014
vide letter dated 12.02.2014 as last
opportunity. The petitioner, it is true
initially took time by writing letter dated
20.02.2014 that he be given further time
but ultimately appeared and submitted his
reply. The enquiry officer submitted report
but copy whereof was never supplied to
him and upon letter being written to the
enquiry officer under Right to Information
Act about the enquiry report, the enquiry
officer wrote back to the petitioner on
17.07.2014 that entire record has been sent
to the Regional Joint Director of Education
including the original enquiry officer and
so he should contract the Regional Joint
Director of Education. Regional Joint
Director of Education has been repeatedly
informing the petitioner to appear him and
petitioner kept asking for the enquiry
report. Neither the petitioner was supplied
with the enquiry report, nor the petitioner
had the opportunity to meet the findings in
such report and the Regional Joint Director
of Education accepted the report and
approved the punishment order.

25. From these facts it is borne out
that after the order was passed by the
Regional Joint Director of Education on
18.04.2013,
the
issue
regarding
the
appointment of the enquiry officer no more
remained alive as he had appointed a new
enquiry officer.

26. Now it is to be examined whether
enquiry officer did enquire into the charges
giving proper opportunity to the petitioner
or not and whether the final order could
have been passed even without furnishing
782 INDIAN LAW REPORTS ALLAHABAD SERIES
the enquiry report to the delinquent
employee.

27. A very specific plea has come to
be taken in the writ petition that the enquiry
officer refused to give enquiry report taking
the plea that the entire documents have
been forwarded to the Regional Joint
Director of Education vide para 38 and 39.
In reply to the same in the counter affidavit
filed on behalf of the Principal and the
Committee of Management not a single
whisper is there in para 20 as to whether
any such enquiry report was supplied to the
petitioner.

28. A document ofthe Principal of the
Government Degree College, Sambhal
dated 01.01.2015 has been annexed along
with the rejoinder affidavit to show that this
letter was issued after the order approving
the dismissal/ termination from service was
came to be passed by the Regional Joint
Director of Education on 29.09.2014 and
01.10.2014.

29. Thus, it is clear that while the
Regional Joint Director of Education
proceeded to consider the enquiry report,
petitioner had no opportunity to contest the
same. It is also reflected from these
documents filed that before the enquiry
officer, Principal of Government Inter
College, Sambhal, the affidavits were filed
by the employees of Institution regarding
factum of incident of assault upon the
petitioner that had taken place. The report
of the enquiry officer dated 21.06.2014 that
has been brought on record by the
petitioner now shows that the enquiry
officer did not fix any date to hold oral
enquiry except for the date mentioned to
give one opportunity only to the petitioner
to appear before her on 03.03.2014. So
virtually there has been no oral enquiry at
all.

30. In the circumstances it can be
very safely concluded that after a fresh
enquiry officer appointed, he did not held
any oral enquiry except for inviting
petitioner once to appear before the enquiry
officer to meet the charges. The affidavits
of the employees of the institution filed
before the enquiry officer were also not
examined and thus enquiry officer did not
asked any of these employee to appear
before her to rebut the charges and give
testimony in favour of the delinquent
employee. Similarly, the enquiry officer
also did not asked the Principal and
Manager to appear before her. The enquiry
officer virtually proceeded to believe the
documents furnished by the Principal and
Manager and returned her finding that the
claim of the incident to have taken place by
the petitioner did not get prove.

31. A division bench of this Court in
the case of Salahuddin Ansari (supra) has
held that where the charges are denied, oral
enquiry is must. The division bench has
relied upon the judgment of Supreme Court
in the case of State of U.P. & Anr v. T.P.
Lal Srivastava, 1997 (1) LLJ 831. The
Court vide para 11, 12, 13 & 14 of the said
judgment has held thus:

"11. A Division Bench of this
Court in Subhash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541, considering the question
as to whether holding of an oral inquiry is
necessary or not, held that if no oral
inquiry is held, it amounts to denial of
principles
of
natural justice
to
the
delinquent employee. The aforesaid view
was reiterated in Subhash Chandra Sharma
Vs. U.P. Cooperative Spinning Mills &
others, 2001 (2) UPLBEC 1475 and Laturi
Singh Vs. U.P. Public Service Tribunal &
others, Writ Petition No. 12939 of 2001,
decided on 06.05.2005.
3 All. Bhwendra Nath Borah Vs. State of U.P. & Ors.
783

12. An oral inquiry would be
necessary even if the delinquent employee
has failed to submit reply to the charge
sheet. In State of U.P. & another Vs. T.P.
Lal Srivastava, 1997 (1) LLJ 831, the
Hon'ble Apex Court held that even if the
employee has failed to submit reply to the
charge sheet, it would not absolve the
Inquiry Officer from proceeding with the
oral inquiry and submit report as to
whether charge is proved or not. After
recording of evidence, he will find out
whether the charge is proved or not and
submit report to the
 disciplinary authority.

13. The aforesaid exposition of
law makes it clear that the delinquent
employee has a right to defend himself at
different stages. When the charge sheet is
served upon him, he has a right to submit
his reply and in case he does not submit
reply, that itself would not amount to
admission of guilt or that the charge stand
proved. If the allegations are serious and
may
result
in
major
penalty,
the
disciplinary authority may appoint Inquiry
Officer. Such Inquiry Officer, thereafter
would have to fix a date for oral evidence.
At this stage the delinquent employee has a
right to participate in the oral inquiry,
examine witnesses, if produced by the
department, and after the evidence of the
department is completed, the delinquent
employee may produce evidence in his
defence. During the course of oral inquiry,
the delinquent employee has right to
participate at every stage and date and if
there is any failure in participation on one
or more occasions, the Inquiry Officer
cannot deny him participation from the
subsequent stage.