# Chamoli District Co-operative Bank Ltd v. Raghunath Singh Rana and others

- **Citation:** (2011) 2 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-16
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chamoli-district-co-operative-bank-ltd-v-raghunath-singh-rana-and-others-47289
- **Pages:** 7

## Headnote

A. Service Law - Regularization -
Principles
of
Parity
-
U.P.
Regularization
of
Daily
Wages
Appointment on Group-D Posts Rules,
2001 - If any employee has engaged as
a daily wager prior to cut off date i.e.
29.6.1991 and is serving as daily wager
on
21.12.2001,
the
date
of
commencement of the Rules, 2001, his
services should have been regularized
in terms of regularization Rules, 2001.

It has been not disputed that the judgment
of this Court in re: Janardan Yadav (infra),
laying
down
the
abovementioned
preposition, has not been quashed or
modified by the Division Bench of this Court
or by Hon'ble Apex Court, therefore, that
judgment is still a good law governing the
field. Further, the services of identically
placed employees have been regularized
following this decision, therefore, on the
basis of principles of parity the services of
the petitioner may be regularized in terms of
the directions issued in re: Janardan Yadav
(infra). (Para 9, 10)

Writ petition allowed. (E-3)

Precedent followed:

## Text

8 All. Sarvesh Kumar Dixit Vs. State of U.P. & Anr.
67
20.12.2019 issued by the CBIC providing
for payment of ''redemption fine' in
addition to the settlement amount paid
under section 124 of the Scheme and
further
providing
that
the
Discharge
Certificate under the Scheme may not be
issued unless that fine has been paid, is
clearly contrary to the Scheme. To that
extent it is unenforceable against the
petitioner. The order dated 17.11.2020
issued by the Designated Committee,
SVLDR
Scheme,
2019/Commissioner
Central Tax, Central Goods & Services
Commissionerate, Ghaziabad, requiring the
petitioner to deposit the 'redemption fine' as
a pre-condition to issue the Discharge
Certificate is found to be wholly contrary to
law for the same reason. The said order is
accordingly set-aside, and a Mandamus is
issued to the said respondent to issue the
Discharge Certificate to the petitioner
within a period of two weeks from the date
of service of a copy of this order.

39. No order as to costs.
----------
(2021)08ILR A67
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 1610 of 2021

Sarvesh Kumar Dixit ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Vijay Dixit

Counsel for the Respondents:
C.S.C.

A. Service Law - Dismissal - Departmental
Enquiry
-
U.P.
Government
Servant
(Discipline and Appeal) Rules, 1999 - The
departmental enquiry should be conducted and
concluded in accordance with law and for
conducting oral enquiry the date, time and place
must be fixed intimating the incumbent about
such
date,
time
and
place
and
proper
opportunity should be extended to an employee.
If any departmental enquiry, which is initiated
and
contemplated
for
awarding
major
punishment is conducted without providing an
ample
opportunity
to
the
employee
for
conducting oral enquiry, such departmental
enquiry vitiates and does not sustain in the eyes
of law. Consequently, if any, punishment order
is passed following such enquiry report, such
punishment shall also be vitiated and shall not
be sustainable in the eyes of law. (Para 6)

Writ petition allowed. (E-3)

Precedent followed:

1. St.of U.P. & ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772 (Para 6)

2. Roop Narain Pandey Vs U.P. Co-operative
Institutional Service Board & ors., 2019 (3) ADJ
9 (Para 7)

3. Chairman L.I.C. Vs A. Masilamani, (2013) 6
SCC 530 (Para 8)

Present petition assails dismissal order
dated 08.05.2020.

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

1. Sri Vijay Dixit, learned counsel for
the petitioner has filed rejoinder affidavit to
the counter affidavit filed on behalf of the
opposite party no. 2, which is taken on
record.

2. Heard Sri Sandeep Dixit, learned
Senior Advocate assisted by Sri Vijay
Dixit, learned counsel for the petitioner and
68 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Vivek Kumar Shukla, learned Standing
Counsel for the State.

3. By means of this petition, the
petitioner has assailed the dismissal order
dated 8.5.2020 passed by opposite party no.
1 (Annexure-1 to the writ petition). The
main ground to assail the impugned order
of dismissal is that the dismissal order has
been passed on the basis of enquiry
wherein no date time and place was fixed
and the petitioner was not afforded an
opportunity of hearing as per law therefore,
the
enquiry
proceeding
vitiates
and
consequent thereto the punishment order of
dismissal also vitiates.

4. So as to strengthen his legal
submission, the learned Senior Advocate
for the petitioner has referred paragraph no.
14 and paragraph nos. 37 to 43 of the writ
petition and the reply of the aforesaid
paragraphs has been given in the counter
affidavit in paragraph nos. 20 and 37
whereby those contents of writ petition has
not been denied with material.

5. Precisely, by means of paragraph
no. 14 of the writ petition the specific
averments have been made that no date,
time and place has been fixed by the
Enquiry Officer. In fact no enquiry has
been conducted by the Enquiry Officer in
terms of the provisions as contemplated in
the provision of U.P. Government Servant
(Discipline and Appeal) Rules, 1999
(hereinafter referred to as the ' Rules,
1999'). The enquiry officer has submitted
its report on 15.11.2018. In other paragraph
nos. 37 to 43 of the petition, the same
averments
have
been
made
by
the
petitioner. While replying the aforesaid
contention of paragraph No. 14 of the writ
petition, the opposite party in paragraph
No. 20 has, however, denied the contents of
paragraph no. 14 but it is nowhere
explained as to how the date, time and
place has been fixed for conducting the oral
enquiry. Likewise while replying paragraph
nos. 37 to 43 of the writ petition the
opposite party in paragraph no. 37 of the
counter affidavit has not denied the specific
averments of those paragraphs and only
this much has been indicated that the
punishment order of dismissal has been
passed strictly on the basis of Rules, 1999.

6. Having heard learned counsel for the
parties and having perused the material
available on record, I am of the considered
opinion that the departmental enquiry should
be conducted and concluded in accordance
with law and for conducting oral enquiry the
date, time and place must be fixed intimating
the incumbent about such date, time and
place and proper opportunity should be
extended to an employee. If any departmental
enquiry, which is initiated and contemplated
for awarding major punishment is conducted
without providing an ample opportunity to
the employee fixing date, time and place for
conducting oral enquiry, such departmental
enquiry vitiates and does not sustain in the
eyes of law. Consequently, if any, punishment
order is passed following such enquiry report,
such punishment shall also be vitiated and
shall not be sustainable in the eyes of law.
The Hon'ble Apex Court in Re: State of Uttar
Pradesh and others Vs. Saroj Kumar Sinha
(2010) 2 Supreme Court Cases 772 has held
that
if
the
departmental
enquiry
is
contemplated without adopting the procedure
of
law
and
without
affording
ample
opportunity of hearing to the petitioner and
without fixing date, time and place, such
departmental enquiry shall vitiate. The
relevant paragraph no. 39 reads as under:-

"39.The proposition of law that a
government employee facing a department
8 All. Sarvesh Kumar Dixit Vs. State of U.P. & Anr.
69
enquiry is entitled to all the relevant
statement, documents and other materials
to enable him to have a reasonable
opportunity to defend himself in the
department enquiry against the charges is
too well established to need any further
reiteration. Nevertheless given the facts of
this case we may re-emphasise the law as
stated by this Court in the case of State of
Punjab Vs. Bhagat Ram: (SCC p. 156.
paras 6-8):

 "6. The State contended that the
respondent was not entitled to get copies of
statements. The reasoning of the State was
that
the
respondent
was
given
the
opportunity to cross-examine the witnesses
and during the cross-examination the
respondent would have the opportunity of
confronting
the
witnesses
with
the
statements. It is contended that the synopsis
was adequate to acquaint the respondent
with the gist of the evidence.

 7. The meaning of a reasonable
opportunity of showing cause against the
action proposed to be taken is that the
government
servant
is
afforded
a
reasonable opportunity to defend himself
against the charges on which inquiry is
held. The government servant should be
given an opportunity to deny his guilt and
establish his innocence. He can do so when
he is told what the charges against him are.
He can do so by cross-examining the
witnesses produced against him. The object
of
supplying
statements
is
that
the
government servant will be able to refer to
the previous statements of the witnesses
proposed to be examined against the
government servant. Unless the statements
are given to the government servant he will
not be able to have an effective and useful
cross-examination.

8. It is unjust and unfair to deny
the
government
servant
copies
of
statements of witnesses examined during
investigation and produced at the inquiry in
support of the charges levelled against the
government servant. A synopsis does not
satisfy the requirements of giving the
government
servant
a
reasonable
opportunity of showing cause against the
action proposed to be taken."

7. This Court in Re:Roop Narain
Pandey Vs. U.P. Co-operative Institutional
Service Board and Ors. 2019 (3)ADJ 9 has
considered the similar controversy and the
relevant paragraph nos. 13 to 25 read as
under:-

13. In the case of Meenglas Tea
Estate v. The workmen., AIR 1963 SC
1719, the Hon'ble Supreme Court observed
that it is an elementary principle that a
person who is required to answer a charge
must know not only the accusation but also
the testimony by which the accusation is
supported. He must be given a fair chance
to hear the evidence in support of the
charge and to put such relevant questions
by way to cross-examination as he desires.
Then he must be given a chance to rebut the
evidence led against him. This is the barest
requirement of an enquiry of this character
and this requirement must be substantially
fulfilled before the result of the enquiry can
be accepted.

14. In State of U.P. v. C. S.
Sharma, AIR 1968 SC 158, the Hon'ble
Apex Court held that omission to give
opportunity to the officer to produce his
witnesses and lead evidence in his defence
vitiates the proceedings. The Court also
held that in the enquiry witnesses have to
be examined in support of the allegations,
and opportunity has to be given to the
delinquent to cross-examine these witnesses
and to lead evidence in his defence.

15. In Punjab National Bank v.
A.I.P.N.B.E. Federation, AIR 1960 SC
70 INDIAN LAW REPORTS ALLAHABAD SERIES
160, (vide para 66), the Hon'ble Apex
Court held that in such enquiries evidence
must be recorded in the presence of the
charge-sheeted employee and he must be
given an opportunity to rebut the said
evidence. The same view was taken in
A.C.C. Ltd. v. Their Workmen, (1963) II
LLJ. 396, and in Tata Oil Mills Co. Ltd. v.
Their Workmen, (1963) II LLJ. 78 (SC).

16. In S.C. Girotra v. United
Commercial Bank, 1995 Supp. (3) SCC
212, the Hon'ble Apex Court set aside a
dismissal order which was passed without
giving employee an opportunity of crossexamination.

17.
This
Court
in
Subhas
Chandra Sharma v. Managing Director
and another, 2000 (1) UPLBEC 541 has
held as under:-

"In
our
opinion
after
the
petitioner replied to the charge-sheet a date
should have been fixed for the enquiry and
the petitioner should have been intimated
the date, time and place of the enquiry and
on that date the oral and documentary
evidence against the petitioner should have
been led in his presence and he should have
been given an opportunity to cross-examine
the witnesses against him and also he
should have been given an opportunity to
produce his own witnesses and evidence. If
the petitioner in response to this intimation
had failed to appear for the enquiry then an
ex parte enquiry should have been held but
the petitioner's service should have not
been
terminated
without
holding
an
enquiry. In the present case it appears that
no regular enquiry was held at all. All that
was done that after receipt of the
petitioner's reply to the charge-sheet he
was given a show-cause notice and
thereafter the dismissal order was passed.
In our opinion this was not the correct
legal procedure and there was violation of
the rules of natural justice. Since no date
for enquiry was fixed nor any enquiry held
in which evidence was led in our opinion
the impugned order is clearly violative of
natural justice."

18. In the State of Uttar Pradesh
v. Saroj Kumar Sinha, reported in (2010)
2 SCC 772, the Hon'ble Apex Court held
that:-

"An inquiry officer acting in a
quasi-judicial authority is in the position of
an independent adjudicator. He is not
supposed to be a representative of the
department/
disciplinary
authority/
Government. His function is to examine the
evidence presented by the Department,
even in the absence of the delinquent
official to see as to whether the unrebutted
evidence is sufficient to hold that the
charges are proved. In the present case the
aforesaid procedure has not been observed.
Since no oral evidence has been examined
the documents have not been proved, and
could
not
have
been
taken
into
consideration to conclude that the charges
have been proved against the respondents.

When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
in imposition of punishment including
dismissal/removal from service."

19. Similar view was taken by the
Hon'ble Apex Court in Roop Singh Negi v.
Punjab National Bank, (2009) 2 SCC 570
as under:-

"Indisputably,
a
departmental
proceeding is a quasi-judicial proceeding.
8 All. Sarvesh Kumar Dixit Vs. State of U.P. & Anr.
71
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon
taking
into
consideration
the
materials brought on record by the parties.
The purported evidence collected during
investigation by the investigating officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents
and did not prove the contents thereof.
Reliance, inter alia, was placed by the
enquiry officer on the FIR which could not
have been treated as evidence."

20. In another case in Subhash
Chandra Gupta v. State of U.P., 2012 (1)
UPLBEC 166, the Division Bench of this
Court after survey of law on this issue
observed as under:

"It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be done
in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted in accordance with the enquiry
rules meant for that very purposes is
unsustainable in the eye of law. We are
further of the view that the procedure
prescribed under the inquiry rules for
imposing major penalty is mandatory in
nature and unless those procedures are
followed, any out come inferred thereon
will be of no avail unless the charges are so
glaring and unrefutable which does not
require any proof. The view taken by us find
support from the judgement of the Apex
Court in State of U.P. & another Vs.
T.P.Lal Srivastava, 1997 (1) LLJ 831 as
well as by a Division Bench of this Court in
Subash Chandra Sharma Vs. Managing
Director & another, 2000 (1) U.P.L.B.E.C.
541.

21. A Division Bench decision of
this Court in the case of Salahuddin
Ansari Vs. State of U.P. and others, 2008
(3) ESC 1667 held that non holding of oral
inquiry is a serious flaw which can vitiate
the
order
of
disciplinary
proceeding
including the order of punishment has
observed as under:-

" 10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11. A Division Bench of this
Court in Subash 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 Subash Chandra Sharma
Vs. U.P.Cooperative Spinning Mills &
others, 2001 (2) U.P.L.B.E.C. 1475 and
Laturi Singh Vs U.P.Public Service
Tribunal & others, Writ Petition No.
12939 of 2001, decided on 06.05.2005."

22. Even if the employee refuses
to participate in the enquiry the employer
cannot straightaway dismiss him, but he
must hold and ex-parte enquiry where
evidence must be led vide Imperial
Tobacco Co. Ltd. v. Its Workmen, AIR
1962 SC 1348, Uma Shankar v. Registrar,
1992 (65) FLR 674 (All).

23. The Division Bench of this
Court in the case of Mahesh Narain Gupta
v. State of U.P. and others, (2011) 2 ILR
570 has held as under:-

"At this stage, we are to observe
that in the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
72 INDIAN LAW REPORTS ALLAHABAD SERIES
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee.
Even if the department is to rely its own
record/document
which
are
already
available, then also the enquiry officer by
looking into them and by assigning his own
reason after analysis, will have to record a
finding that hose documents are sufficient
enough to prove the charges.

24. In no case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved. This
will be erroneous. It has been repeatedly
said that disciplinary authority has a right
to proceed against delinquent employee in
exparte manner but some evidence will
have to be collected and justification to
sustain the charges will have to be stated in
detail. The approach of the enquiry officer
of automatic prove of charges on account
of
non
filing
of
reply
is
clearly
misconceived and erroneous. This is
against the principle of natural justice, fair
play, fair hearing and, thus, enquiry officer
has to be cautioned in this respect.

25. Recently the entire law on the
subject has been reviewed and reiterated in
Chamoli District Co-operative Bank Ltd.
Vs. Raghunath Singh Rana and others,
AIR 2016 SC 2510 and the Hon'ble Apex
Court has culled out certain principles as
under:

"i)
The
enquiries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

ii) If an officer is a witness to any
of the incidents which is the subject matter
of the enquiry or if the enquiry was
initiated on a report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent charged and give an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any."

8. During the course of argument,
learned
Additional
Chief
Standing
Counsel has, however, submitted that if
this Court arrives on conclusion that this
is the case of no enquiry and the order of
dismissal is liable to be set aside, then in
the light of decision of Hon'ble Apex
Court in Re: Chairman L.I.C. Vs. A.
Masilamani (2013) 6 SCC 530 the
matter should be remanded back to the
authority concerned to pass order strictly
in accordance with law, particularly from
the stage of defect.

9. Accordingly, considering the
aforesaid
submissions
and
legal
propositions, the writ petition is allowed.

10. A writ in nature of certiorari is
issued and the impugned order dated
8.5.2020 passed by opposite party no. 1
(Annexure-1 to the writ petition) is, hereby,
quashed
8 All. Bhagwan Das Vs. State of U.P. & Ors.
73

11. The consequences to follow.

12. It is needless to say that if the
competent authority wants to pass appropriate
order following due procedure of law and rules,
such order may be passed with expedition
preferably within a period of three months. It is
also provided that in view of decision of
Hon'ble Apex Court in Re: Chairman L.I.C.
Vs. A. Masilamani (2013) 6 SCC 530, the fresh
order may be passed rectifying the legal error
from the stage of defect.

13. No order as to costs.
----------
(2021)08ILR A73
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN

Service Single No. 4290 of 2014

Bhagwan Das ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shobha Nath Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Regularization -
Principles
of
Parity
-
U.P.
Regularization
of
Daily
Wages
Appointment on Group-D Posts Rules,
2001 - If any employee has engaged as
a daily wager prior to cut off date i.e.
29.6.1991 and is serving as daily wager
on
21.12.2001,
the
date
of
commencement of the Rules, 2001, his
services should have been regularized
in terms of regularization Rules, 2001.

It has been not disputed that the judgment
of this Court in re: Janardan Yadav (infra),
laying
down
the
abovementioned
preposition, has not been quashed or
modified by the Division Bench of this Court
or by Hon'ble Apex Court, therefore, that
judgment is still a good law governing the
field. Further, the services of identically
placed employees have been regularized
following this decision, therefore, on the
basis of principles of parity the services of
the petitioner may be regularized in terms of
the directions issued in re: Janardan Yadav
(infra). (Para 9, 10)

Writ petition allowed. (E-3)

Precedent followed:

1. Janardan Yadav Vs St. of U.P., 2008 (1)
ADJ 60 (Para 6)

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

1. Heard Sri Shobh Nath Pandey,
learned counsel for the petitioner and Sri
Vinod Kumar Shukla, learned Standing
Counsel for the State-respondents.

2. By means of this writ petition, the
petitioner has prayed for the following
reliefs:-

"(i) to issue a writ, order or
direction in the nature of certiorari, thereby
quashing
the
impugned
order
dated
25.06.2014, passed by the opposite party
No.3, as contained in Annexure No.1 to this
writ petition.

(ii) to issue a writ, order or
direction in the nature of mandamus
commanding
the
opposite
parties
to
regularize the services of the petitioner in
pursuance of U.P. Regularization of Daily
Wages Appointments on Group-D Posts
Rules, 2001.