# Bipul Raman v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 1066
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bipul-raman-v-state-of-u-p-ors-46201
- **Pages:** 6

## Headnote

A. Service Law - Disciplinary enquiry - If
the charge (s), as indicated in the chargesheet, has/have been declared as 'not
proved' then nothing can be said to be
'proved' or 'partially proved' on the basis
of
additional
findings
regarding
any
allegation which is not the subject matter
of the enquiry in question and such
findings, if any, shall be treated as
perverse finding. (Para 18)
Hence, in the present case, the charge no. 5
and 6 shall be treated to be not proved
inasmuch as the inquiry officer has himself
indicated that the charge no. 5 and 6 are not
proved against the petitioner. (Para 18)

B. The disciplinary authority may not
award any punishment banking upon
findings of inquiry officer, wherein none of
the charges are proved against the
petitioner,
without
being
disagreed
thereon and without issuing any show
cause notice or seeking explanation from
the
petitioner
on
the
point
of
disagreement. Since the inquiry officer has
said that charges no. 5 and 6 are partly proved
so disciplinary authority may not legally say that
both the charges are proved as said by him in
the punishment order. If the disciplinary
authority was of the view that both the charges
should be treated proved, a show cause notice
of disagreement must have been issued seeking
explanation from the petitioner. In absence of
aforesaid legal requirement the impugned
punishment order (dated 26/29-9-2015) shall
not survive as it would be nullity in the eyes of
law. (Para 19)

Writ petition allowed. (E-4)

Present
petition
assails
order
dated
26/29.09.2015,
passed
by
Chairman,
Administrative
Committee,
U.P.
Cooperative Dairy Federation, Lucknow.

## Text

1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Jhansi, in Sessions Trial No. 37 of 1985
(State vs. Mahendra alias Motey and
another), arising out of Case Crime No.
326 of 1984, under Section - 302 I.P.C.
Police Station - Kotwali, District - Jhansi.
Consequently, the aforesaid appeal lacks
merit and the same is dismissed.

29. In this case, appellant - Mahendra
alias Motey is in jail. The appellant shall
serve out the remaining sentence imposed
upon him by the trial court.

30. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2021)10ILR A1066
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J

Service Bench No. 1800 of 2015(Now S/S)

Bipul Raman ...Petitioner
Versus
State of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Sanjay Kumar Srivastava

Counsel for the Respondents:
C.S.C., Amar Chaudhary, Lalit Shukla

A. Service Law - Disciplinary enquiry - If
the charge (s), as indicated in the chargesheet, has/have been declared as 'not
proved' then nothing can be said to be
'proved' or 'partially proved' on the basis
of
additional
findings
regarding
any
allegation which is not the subject matter
of the enquiry in question and such
findings, if any, shall be treated as
perverse finding. (Para 18)
Hence, in the present case, the charge no. 5
and 6 shall be treated to be not proved
inasmuch as the inquiry officer has himself
indicated that the charge no. 5 and 6 are not
proved against the petitioner. (Para 18)

B. The disciplinary authority may not
award any punishment banking upon
findings of inquiry officer, wherein none of
the charges are proved against the
petitioner,
without
being
disagreed
thereon and without issuing any show
cause notice or seeking explanation from
the
petitioner
on
the
point
of
disagreement. Since the inquiry officer has
said that charges no. 5 and 6 are partly proved
so disciplinary authority may not legally say that
both the charges are proved as said by him in
the punishment order. If the disciplinary
authority was of the view that both the charges
should be treated proved, a show cause notice
of disagreement must have been issued seeking
explanation from the petitioner. In absence of
aforesaid legal requirement the impugned
punishment order (dated 26/29-9-2015) shall
not survive as it would be nullity in the eyes of
law. (Para 19)

Writ petition allowed. (E-4)

Present
petition
assails
order
dated
26/29.09.2015,
passed
by
Chairman,
Administrative
Committee,
U.P.
Cooperative Dairy Federation, Lucknow.

(Delivered by Hon'ble Rajesh
Singh Chuahan, J.)

1.

Heard
Sri
Sanjay
Kumar
Srivastava,
leaned
counsel
for
the
petitioner, learned Standing Counsel for the
State respondents and Sri Lalit Shukla,
learned counsel for the U.P. Cooperative
Dairy Federation.

2. By means of present writ petition
the petitioner has assailed the order dated
26/29-9-2015 passed by the opposite party
no.
4
i.e.
Chairman,
Administrative
Committee,
U.P.
Cooperative
Dairy
10 All. Bipul Raman Vs. State of U.P. & Ors.
1067
Federation,
Lucknow,
awarding
two
punishments against the petitioner i.e. (i) he
has been repatriated to his basic pay, and
(ii) Censure entry for the year 2013-14 and
his integrity for the year 2009-10 has been
declared doubtful.

3. At the very outset Sri Srivastava
has informed that during the pendency of
the present writ petition the petitioner has
attained the age of superannuation.

4. The questions to be considered are
that:

(i) As to whether the inquiry
officer may give his findings beyond the
charges so leveled against the petitioner by
means of charge-sheet ?

(ii) As to whether the disciplinary
authority may award any punishment
contrary to the findings of inquiry report
without giving any notice to the petitioner
on the disagreement of the findings?

5. The precise facts giving rise for
disposal of the aforesaid issues are that the
petitioner was serving under the opposite
parties no. 4 & 5. In the year 2009 he was
serving on the post of Manager, Grade-IV
(Finance) at Barabanki. While serving on
the aforesaid post the petitioner has been
served the charge-sheet dated 21.7.2014
(Annexure no. 7) wherein there were six
charges
against
the
petitioner.
The
petitioner participated in the departmental
inquiry and disputed all the allegations so
leveled against him, thereafter the inquiry
officer concluded his inquiry and submitted
his
findings
before
the
disciplinary
authority on 30.3.2015(Annexure no. 11).

6. Admittedly, the petitioner has been
exonerated from charges no. 1 to 4.
However, charge nos. 5 and 6 were said to
be proved partially against the petitioner.

Precisely charges no. 5 and 6 are
being reproduced herein below:

"vkjksi la0&5

nqX/k la?k ckjkcadh ds tujy izek.kd
la0 339 fnukad 31-03-2010 }kjk :0 115414-83
dh /kujkf'k ykHk gkfu lek;kstu [kkrs dks MsfcV
djrs gq, vius O;fDrxr [kkrs esa bl /kujkf'k dks
dzsfMV dj =qfViw.kZ<ax ls Hkqxrku IkzkIr fd;k x;k
gSA ;g ik;k x;k fd mDr /kujkf'k dkuiqj nqX/k
la?k dh ftl ,Mokbt la0 27@01 fnukad 31-032010 dk mYYks[k djrs gq, mijksDr ys[kk izfof"V
dh x;h gS] mldk ys[kkadu dkuiqj nqX/k la?k ls
izkIr nqX/k la?k ckjkcadh ds foRRkh; o"kZ 2009&10
o 2010&11 ds ystj ,dkmUV esa ugh gSA mDr ls
Li"V gS fd vki }kjk QthZ ,Mokbt ds vk/kkj
ij mijksDr ys[kk izfof"V dj nqX/k la?k ckjkcadh
ls :0 115414-83 dh /kujkf'k dk vkgj.k fd;k
x;k gS] ftlds fy;s vki nks"kh gS ,oa vkidh
lR;fu"Bk Hkh lafnX/k gSA

lk{;&

1- ckjkcadh nqX/k la?k ds foRRkh; o"kZ
2009&10 ds ykHk gkfu lek;kstu [kkrs dh Nk;k
izfrA

2- dkuiqj nqX/k la?k ls izkIr foRRkh;
o"kZ 2009&10 o 2010&11 ds ystj ,dkmUV dh
Nk;kizfrA

vkjksi la[;k 6

nqX/k la?k ckjkcadh dks fnukad 1-4-08
ls fnukad 31-3-13 rd :0 1]05]74]656-25 dh
gkfu;kW gqbZA ekg vizSy 13 ls fnlEcj 13 rd
nqX/k la?k }kjk iszf"kr VsafMax vkijsfVax fooj.k ds
vqulkj :0 53]20]115]00 dh udn gkfu;kW gks
pqdh gSA foRRkh; Ok"kZ 2012&13 ds lfefr deh'ku
dh /kujkf'k :0 33]53]495-00 tujy okmpj la0
218 fnukad 31-03-2014 ,oa foRRkh; o"kZ
2013&141⁄41-4-2013 ls 31-12-20131⁄2 ds lfefr
deh'ku dh /kujkf'k :0 1945449-00 tujy
okmpj la0 219 fnukad 31-03-2014 }kjk MsfcV
dh x;h gSA blds vfrfjDr foRRkh; o"kZ 13&14 esa
ykHk gkfu lek;kstu [kkrs esa :0 38]22]496-51
dh /kujkf'k fnukad 26-1-14 rd MsfcV dh x;h
gSA bl izdkj nqX/k la?k ckjkcadh dks 1-4-08 ls
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
fnlECkj] 13 rd :0 2]50]16]211-76 dh gkfu gqbZ
gS ftlds fy;s vki mRRkjnk;h gSA

lk{;&

1- nqX/k la?k ckjkcadh dh ekg viSzYk
13 ls fnlEcj ] 13 rd nqX/k la?k }kjk izsf"kr
VsafMax vkijsfVax fooj.k dh Nk;kizfrA

2- nqX/k la?k ckjkcadh ds tujy
okmpj la0 218 o 219 fnukad 31-03-2014 dh
N;k izfrA

3- nqX/k la?k ckjkcadh ds ykHk gkfu
[kkrs ds lek;kstu dh Nk;k izfrA

4- nqX/k la?k ckjkcadh dh foRRkh; o"kZ
2008&09 ls o"kZ 2012&13 rd ds lUrqyu i=
dh Nk;k izfr;kWA

7. The perusal of the aforesaid
charges reveal that charge no. 5 says that a
sum of Rs. 115414.83/- has been credited
by the petitioner in his account in stead of
crediting the same in the account of Dugdh
Sangh concerned, therefore, he has usurped
that amount. The findings of inquiry officer
regarding aforesaid charge clearly says that
after perusing the personal account details
of the petitioner as well as the other
relevant papers of the Dugdh Sangh
concerned the said charge is not proved
against the petitioner. It has been further
indicated by the inquiry officer that the said
charge appears to be erroneously leveled
against the petitioner as there might have
been some narrational error in the accounts.
However, the inquiry officer has observed
submitted that the petitioner must have
informed
the
headquarter
about
the
aforesaid entry which caused confusion,
therefore, the charge is partially proved
against the petitioner.

8. Sri Srivastava has submitted that
if the amount in question has not been
credited in the personal account of the
petitioner rather it was a narrational error
then that amount cannot be said to have
been usurped by the petitioner so for all
practical purposes the petitioner should
have been exonerated from that charge.
However,
indicating
that
such
information
regarding
aforesaid
erroneous entry which has not been
intimated to the headquarter should be
intimated
by
the
petitioner
is
an
additional
charge
for
which
no
explanation has been called from him,
rather there was no such charge in the
charge-sheet. Therefore, as per trite law
the inquiry officer may not give his
findings beyond the charge for which the
ample opportunity of hearing has not
been provided to the employee.

9. So far as the charge no. 6 is
concerned which says that the Dugdh
Sangh, Barabanki has suffered the losses
to the tune of Rs. 25016211.76 w.e.f.
1.4.2008 to December, 2013 for the
reason that proper entries have not been
made in the accounts of the Sangh.

10. Sri Srivastava has submitted that
it is not very clear in this charge as to
what lapse has been committed by the
petitioner, only this much can be gathered
that such Dugdh Sangh, Barabanki has
suffered losses. The inquiry officer has
given his clear findings on the aforesaid
charge that for the loss in question the
petitioner may not be held liable.
However, being the In-charge (Finance)
he should have taken due care and
precaution to avoid the losses.

11. Sri Srivastava has further
submitted that if the petitioner has been
exonerated from the charge that he is not
responsible for the losses in question then
the additional charge to the effect that
being In-charge (Finance) he should have
taken due care and precaution to avoid the
losses is unwarranted and misconceived
10 All. Bipul Raman Vs. State of U.P. & Ors.
1069
inasmuch as no such charge has been
leveled against the petitioner vide charge
no. 6.

12. Therefore, as per Sri Srivastava in
all six charges leveled against the petitioner
the petitioner has been exonerated by the
inquiry officer for all practical purposes
inasmuch as the additional charges so leveled
against the petitioner while giving findings on
charge no. 5 and 6 the petitioner has not been
afforded an opportunity of hearing as said
additional charges were not the part of
charges no. 5 and 6, therefore, to that extent
the findings of inquiry officer is unwarranted,
uncalled for and nonest in the eyes of law.

13. Sri Srivastava has drawn attention
of this Court towards Annexure no. 12 to this
writ petition which is explanation to the show
cause notice submitted by the petitioner
before the disciplinary authority wherein he
has explained that he had preferred a letter
dated 2.4.2010 to the General Manager,
Finance and Accounts, apprising that the
amount to the tune of Rs. 115414.83/- has not
been credited in his account. He had enclosed
that
letter
dated
2.4.2010
with
his
explanation. He has also apprised the
disciplinary authority that he was not incharge of the Dugdh Sangh, Barabanki at that
point of time and it was not his administrative
authority to run the Dugdh Sangh, Barabanki
inasmuch as he was only In-charge (Finance)
and he discharged his duties with utmost
sincerity and dedication which is very much
clear perusing the inquiry report that none of
the charges have been found proved against
him. Therefore, he requested from the
disciplinary authority that he might be
exonerated from the charges / allegations.

14. Sri Srivastava has also drawn
attention of this Court towards Annexure
no. 13 which is an order passed by the
same disciplinary authority in the case of
Sri A.K. Pachori, the then in-charge of
Dugdh Sangh, Barabanki wherein charge
no. 8 leveled against Sri Pachori is the
same charge which has been leveled
against the present petitioner by means of
charge no. 6. Sri Pachori despite being incharge
of
Dugdh
Sangh
has
been
exonerated from this charge. However, the
preliminary inquiry is said to have been
directed against him.

15. In view of the above Sri
Srivastava has submitted that the in-charge
of the Dugdh Sangh, Barabanki who should
be held responsible administratively for the
charge regarding loss of the Dugdh Sangh
has been exonerated but the present
petitioner despite being exonerated from
that charge has been held responsible for
administrative lapse, however, he was not
administrative in-charge but was the Incharge (Finance).

16. Sri Srivastava has also submitted
that he has categorically indicated all the
aforesaid facts and circumstances in detail
in para 28,29,30,31,32 and 34 of the writ
petition but no denial of the aforesaid
contentions of writ petition has been made
in para 13 and 14 of the counter affidavit
rather those contentions have been accepted
as admitted. Therefore, the punishment
order dated 26/29-9-2015 is not sustainable
in the eyes of law and is liable to be
quashed.

17. Per contra, Sri Lalit Shukla,
learned counsel for the U.P. Cooperative
Dairy Federation has submitted that if this
Court finds that the inquiry officer has
given his finding beyond the charge, the
matter may be remanded back to the
inquiry officer to submit his appropriate
findings.
Further,
if
the
disciplinary
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
authority without being disagreed from the
findings of the inquiry officer has treated
charge nos. 5 and 6 proved, the matter may
be remanded back to the disciplinary
authority to pass appropriate orders on the
findings of the inquiry officer. Sri Shukla
has also submitted that if it is a case of
defective inquiry or defective punishment
order then in view of the settled law the
matter may be remanded back to the
competent authority to pass appropriate
orders in accordance with law.

18. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that the inquiry officer may not
travel beyond the charges, therefore, such
findings of inquiry officer which are
beyond the charges no. 5 and 6 are patently
unwarranted, uncalled for and nonest in the
eyes of law. Law is settled that if the
charge (s), as indicated in the charge-sheet,
has / have been declared as 'not proved'
then nothing can be said to be 'proved' or
'partially proved' on the basis of additional
findings regarding any allegation which is
not the subject matter of the enquiry in
question and such findings, if any, shall be
treated as perverse finding.

Hence, the charge no. 5 and 6
shall be treated to be not proved inasmuch
as the inquiry officer has himself indicated
that the charge no. 5 and 6 are not proved
against the petitioner.

19. Now question comes as to
whether the disciplinary authority may
award any punishment on the basis of
inquiry report wherein none of the charges
are proved against the petitioner, without
being disagreed thereon, the legal position
is very clear to the effect that the
disciplinary authority may not award any
punishment banking upon such findings of
inquiry officer, without being disagreed on
such finding and without issuing any show
cause notice or seeking explanation from
the petitioner on the point of disagreement.
Since the inquiry officer has said that
charges no. 5 and 6 are partly proved so
disciplinary authority may not legally say
that both the charges are proved as said by
him in the punishment order. If the
disciplinary authority was of the view that
both the charges should be treated proved,
a show cause notice of disagreement must
have been issued seeking explanation from
the petitioner. In absence of aforesaid legal
requirement the impugned punishment
order shall not survive as it would be
nullity in the eyes of law. Therefore, the
impugned punishment order dated 26/29-92015 is also nonest in the eyes of law.

20. So far as the contention of Sri
Lalit Shukla, learned counsel for the
U.P.C.D.F. is concerned that the matter
may be remanded back from the stage of
defect of inquiry or from the stage of defect
of punishment order is concerned, I am of
the considered opinion that the inquiry
officer has conducted the departmental
inquiry as per law by affording an
opportunity of hearing to the petitioner as
the petitioner is not aggrieved from the
manner the inquiry has been conducted,
therefore, I do not find any defect in the
inquiry
proceedings.
So
far
as
the
additional findings given by the inquiry
officer regarding charge no. 5 and 6 are
concerned, he cannot give such finding
beyond the charges as observed above and
admittedly no specific charges were leveled
against the petitioner by means of chargesheet on which the inquiry officer has given
that findings, therefore, to that extent such
findings
are
perverse
and
are
not
sustainable in the eyes of law. Further, the
10 All. Mobin @ Nanha & Ors. Vs. State of U.P.
1071
impugned punishment order has been
passed by the disciplinary authority without
issuing any show cause notice on the
disagreement from the findings of inquiry
officer, therefore, such punishment order is
not sustainable in the eyes of law on that
score. Hence, I do not find any good
ground to remand back the issue to the
inquiry officer or disciplinary authority to
pass appropriate orders, more particularly,
in view of the fact that during the pendency
of the writ petition the petitioner has retired
from service.

21. Accordingly the writ petition is
allowed.

22. The impugned order dated 26/299-2015 passed by the opposite party no. 4 is
hereby quashed.

23. Consequences to follow.

24. No order as to costs.
----------
(2021)10ILR A1071
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 3422 of 2007

Mobin @ Nanha & Ors....Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri J.B. Singh, Sri Ali Hasan, Alpana
Dwivedi, Sri J.B. Singh, Sri Manish Tiwary,
Sri Noor Mohammad, Sri Rajiv Kumar, Sri
Vineet Kumar Singh, Sri Yogesh Srivastava,
Sri Anil Kumar Yadav, Sri M.N. Pathak, Sri
Balram Singh, Sri Vidya Kant Tripathi, Sri
Ashwini Kumar Awasthi, Sri H.N. Singh, Sri
Mohd. Masood Raja, Sri Manoj Singh, Sri
Vidyanand Tripathi, Sri H.M. Singh

Counsel for the Respondent:
A.G.A., Sri N.I. Zafari

A. Criminal Law - Evidence Act, 1872 -
Section
154
-
Hostile
witnesses
-
Testimony of - It is settled law that the
testimony of the hostile witnesses need
not to be discarded in toto and that
portion of the testimony which supports
the prosecution case can be taken for
consideration - portion of the crossexamination in which the witness turn
hostile,
if
can
be
separated
from
remaining statements, are liable to be
discarded but previous statements which
are trustworthy can be safely relied upon
(Para 13 )

B. Criminal Law - Evidence Act,1872 -
Interested witnesses - Testimony of -
There is no rule of law that testimony of a
interested or related witness should be
discarded out rightly - What is required is
cautious scrutiny of the oral testimony of
such a witness (Para 13 )

C. Criminal Law - Evidence Act,1872 -
Section 154
- Non- Examination of
material witness - Non-examination of a
material witness is not a mathematical
formula for discarding the weight of the
testimony available on record - Court is
required
first
to
assess
the
trustworthiness of the evidence available
on record and if the court finds the
evidence adduced worthy of being relied
on, then the testimony has to be accepted
and acted upon though there may be
other witnesses available who could also
have
been
examined
but
were
not
examined - quality of evidence and not
quantity which matters - prosecution is
not under any obligation to multiply the
evidence - non production of material
witness or any person said to be present
at
the
time
of
occurrence,
by
the