# Chandan Singh Rathi v. District Magistrate, Gautam Budh Nagar and another

- **Citation:** (2002) 2 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-05-10
- **Case number:** Civil Misc. Writ Petition No. 21328 of 1999
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandan-singh-rathi-v-district-magistrate-gautam-budh-nagar-and-another-39251
- **Pages:** 10

## Headnote

Constitution of India- Article 226- the
petitioner has not been furnished of the
documents which he was demanding
during the course of enquiry- since in
this case no regular and proper inquiry
was held nor was subsistence allowance
paid hence in these circumstances, it is
clear that the petitioner had not been
afforded a fair opportunity much less a
reasonable
opportunity
to
defend
himself that has resulted in violation of
principle of natural justice and fair play-
A
dismissal
order
being
major
punishment has serious consequences
and
should
be
passed
only
after
complying with the rules of natural
justice.
The
inquiry
report
is
not
sustainable and therefore it cannot be
relied, upon therefore, the dismissal
order dated 30.11.1998 is liable to be set
aside.

(Held in para 23).

Keeping in view the gravity of the
charges against the petitioner the State
Government is at liberty to make inquiry
afresh and to conclude the inquiry
preferably within six months from the
date of receipt of the certified copy of
this order, in accordance with the law
2 All] Chandan Singh Rathi Vs. District Magistrate, Gautam Budh Nagar and another
355
and in the light of the observations made
above till then respondent is at liberty
not
to
engage
the
petitioner
on
employment.
Case Law Preferred:
(1) 2001 (4) AWC 3061
(2) AIR 1988 SC 117
(3) AIR 1996 SC 2474
(4) AIR 1997 SC 1393
(5) AIR 1973 SC 1183
(6) 1999 (2) UPLBEC 1280 (SC)
(7) AIR 1999 SC 1416
(8) JT 1987 (3) SC 532
(9) 1983 (3) SCR 337
(10) 1983 (3) SCC 387
(11) AIR 1983 SC 803
(12) JT 1986 SC 394
(13) 1973(1) SCC 656
(14) AIR 1973 SC 1183
(15) (2000) 7 SCC 96
(16) 2001 (1) UPLBEC-908
(17) 2002 UPLBEC-1321
(18) 1998 (2) SCC-746
(19) 1994 (4) AWC 3227
(20) AIR 1963 SC 1719
(21) 1995 Supp(3) SCC 212
(22) AIR 1960 SC 160
(23) 1963 II LLJ 3961
(24) 1963 II LLJ 78

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
354
inserted
section 33-B in the U.P.
Secondary Education Services Selection
Board Act 1982, came into force w.e.f.
7.8.93, the appellant-writ petitioner would
be treated to be continuously serving the
institution
from
the
date
of
his
appointment till the commencement of the
Amending Act and is thus, entitled for
being
considered
by
the
Selection
Committee constituted under sub-section
[2] of Section 33-B of the Act in
accordance with law. The decision of the
Hon'ble Supreme Court in the case of
Committee of Management, Arya Nagar
Inter College, Kanpur (supra) would not
be applicable to the facts of the present
case, since the appellant-writ petitioner
had
continued
in
service
in
the
institution/college without any let or
hinderance by any of the authorities and
his services was never terminated by the
management or by the District Inspector
of Schools.

14. In view of the foregoing
discussions, the special appeal succeeds
and is allowed. The respondent no. 1 is
directed to refer the matter relating to the
grant of substantive appointment to the
appellant-writ petitioner to the Selection
Committee constituted under sub-section
[2] of Section 33-B of U.P. Secondary
Education Services Selection Board Act,
1982 and till such time any decision is
taken
by
the
said
committee,
the
appellant-writ petitioner be permitted to
continue on the post in question and be
paid salary. However, the parties shall
bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: THE ALLAHABAD: 10.5.2002

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

Civil Misc. Writ Petition No. 21328 of 1999

Chandan Singh Rathi

...Petitioner
Versus
District Magistrate, Gautam Budh Nagar
and another

 ...Opposite Parties

Counsel for the Petitioner:
Sri M.D. Singh

Counsel for the Respondents:
S.C.

Constitution of India- Article 226- the
petitioner has not been furnished of the
documents which he was demanding
during the course of enquiry- since in
this case no regular and proper inquiry
was held nor was subsistence allowance
paid hence in these circumstances, it is
clear that the petitioner had not been
afforded a fair opportunity much less a
reasonable
opportunity
to
defend
himself that has resulted in violation of
principle of natural justice and fair play-
A
dismissal
order
being
major
punishment has serious consequences
and
should
be
passed
only
after
complying with the rules of natural
justice.
The
inquiry
report
is
not
sustainable and therefore it cannot be
relied, upon therefore, the dismissal
order dated 30.11.1998 is liable to be set
aside.

(Held in para 23).

Keeping in view the gravity of the
charges against the petitioner the State
Government is at liberty to make inquiry
afresh and to conclude the inquiry
preferably within six months from the
date of receipt of the certified copy of
this order, in accordance with the law
2 All] Chandan Singh Rathi Vs. District Magistrate, Gautam Budh Nagar and another
355
and in the light of the observations made
above till then respondent is at liberty
not
to
engage
the
petitioner
on
employment.
Case Law Preferred:
(1) 2001 (4) AWC 3061
(2) AIR 1988 SC 117
(3) AIR 1996 SC 2474
(4) AIR 1997 SC 1393
(5) AIR 1973 SC 1183
(6) 1999 (2) UPLBEC 1280 (SC)
(7) AIR 1999 SC 1416
(8) JT 1987 (3) SC 532
(9) 1983 (3) SCR 337
(10) 1983 (3) SCC 387
(11) AIR 1983 SC 803
(12) JT 1986 SC 394
(13) 1973(1) SCC 656
(14) AIR 1973 SC 1183
(15) (2000) 7 SCC 96
(16) 2001 (1) UPLBEC-908
(17) 2002 UPLBEC-1321
(18) 1998 (2) SCC-746
(19) 1994 (4) AWC 3227
(20) AIR 1963 SC 1719
(21) 1995 Supp(3) SCC 212
(22) AIR 1960 SC 160
(23) 1963 II LLJ 3961
(24) 1963 II LLJ 78

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

1. In this writ petition the petitioner
has prayed to quash the order dated
9.4.1999 (Annexure -9 to the writ
petition) whereby the service of the
petitioner has been dismissed.

2. Heard Sri M.D. Singh, learned
counsel for the petitioner as well as
learned
Standing
counsel
for
the
respondents.

3.

The
facts
necessary
for
adjudication of the writ petition are that
the
petitioner
was
appointed
on
21.12.1982 to the post of class- III as
Ahalmad under the control of District
Magistrate, Meerut at the relevant time
now under the control of District
Magistrate, NOIDA district Gautam Budh
Nagar.
While
working
in
Land
Acquisition Unit 'NOIDA' Ghaziabad, the
petitioner was suspended by an order
dated 19.3.1997 (Annexure-1 to the writ
petition). A charge sheet dated 14.3.1997
was served to the petitioner alongwith
suspension order. The petitioner made a
representation dated 1.4.1997 for supply
of the documents/inspection by giving a
list of 17 documents so that the petitioner
may give effective reply of the charge
sheet. Similar requests were made by the
petitioner on 4.4.1997 and 10.4.1997,
however, neither the documents were
furnished to him nor the petitioner was
permitted to inspect the documents as
desired by him, therefore, the petitioner
filed writ petition no. 4960 /1997 in
respect of non supply of the documents,
and
non
payment
of
subsistence
allowance. The, above writ petition was
disposed by order dated 30.11.1998
(Annexure-3 to the writ petition) with
following directions.

(i) Inquiry
Officer/Disciplinary
Authority directed to furnish the relevant
document to the petitioner within 15 days.
In case the document could not be
supplied,
the
petitioner
should
be
permitted to inspect the document and
take note of the said document.
(ii) Inquiry
Officer
had
been
directed to conclude the inquiry within a
period of 10 weeks and Disciplinary
Authority had been directed to pass final
order within a period of 6 weeks.
(iii) In
case
the
departmental
proceeding is not concluded within the
stipulated period, suspension order shall
stand revoked; and
(iv) The disciplinary authority was
directed to pay subsistence allowance
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
356
within a period of one month from the
date of production of copy of the order
with condition if the petitioner is not paid
subsistence allowance within the period,
suspension order shall stand revoked.

4.
The petitioner made a detail
representation on 20.2.1999 (Annexure-4
to the writ petition) to the District
Magistrate submitting:

(i) for payment of subsistence
allowance;
(ii) for supply of the documents by
making reference to the order of Hon'ble
High Court dated 30.11.1998 and,
(iii) a request was made to change
the inquiry officer.

5. According to the para 12 and 13
of the writ petition the petitioner has
stated about the non-supply of the
relevant documents as well as non-
permission
to
inspect
the
relevant
document by the petitioner and nonproviding the proper opportunity to
defend the petitioner before the Inquiry
Officer. The petitioner also made a
request for payment of subsistence
allowance by his application dated
20.2.1999
and
before
Disciplinary
Authority in his reply to the show cause
notice
dated
3.4.1999,
however,
admittedly the subsistence allowance had
not been paid to the petitioner. The
enquiry was concluded and punishment of
dismissal
order
dated
9.4.1999
(Annexure-9) to the writ petition was
passed which has been challenged in the
present writ petition. The petitioner by his
application dated 20.2.1999 (Annexure-4
to the writ petition) requested for change
of the inquiry officer but before the
disposal of the said application ex parte
enquiry
report
dated
15/17.3.1999
(Annexure -7 to the writ petition) was
submitted.

6. The counter affidavit was filed
and according to para 7 of the same it
revealed that all documents enclosed with
the charge sheet were since already made
available to the petitioner therefore, there
was no necessity felt by respondents to
furnish any other documents to the
petitioner other than which were supplied
to him. The fact that the petitioner was
not paid subsistence allowance despite the
request made by the petitioner from time
to time admitted in 14 of the counter
affidavit while replying the contents of
para 31 of the writ petition therefore it is
clear that the subsistence allowance was
not paid in spite of the direction of this
Court dated 30.11.1998 as indicated
above.

7. The averments in respect of
change of inquiry officer made in para 10
of the writ petition was not controverted
in para 5 of counter affidavit.

8. On the other hand, it has been
argued by learned Standing Counsel on
behalf of the respondents that the
petitioner
was
given
sufficient
opportunities and the relevant documents
were furnished to him and there was no
necessity to change the inquiry officer
therefore, dismissal has been correctly
made. Learned Standing Counsel on
behalf of the respondents contended that
there was no specific pleading pointing
out which particular relevant document
was not supplied to the petitioner due to
which he was prejudiced. It was also
submitted in reference to (a) Chandrama
Tewari v. Union of India, AIR 1988 SC
117; (b) State of Tamil Nadu v. Thiru K.
V. Perumal and others, AIR 1996 SC
2 All] Chandan Singh Rathi Vs. District Magistrate, Gautam Budh Nagar and another
357
2474 and (C) Secretary to Government
and others v. A.C.J. Britto, AIR 1997 SC
1393, where Supreme Court found that it
was not necessary to supply every
document asked for rather the obligation
was only to supply material and relevant
documents
only,
thus,
the
enquiry
proceedings had not vitiated for non
supply of irrelevant documents.

9. The relevant part of Article 311
(2) of the Constitution of India read as
follows:

"(2) No such person as aforesaid
shall be dismissed or removed or reduced
in rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges;

Provided that where it is proposed
after such inquiry, to impose upon him
any such penalty, such penalty may be
imposed on the basis of the evidence
adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on
the penalty proposed...."

10. In Chanshyam Das Srivastava v.
State of Madhya Pradesh, AIR 1973 SC
1183, when the delinquent Forest Ranger
failed to attend the departmental enquiry
due to paucity of funds resulting from non
payment of subsistence allowance, the 5
Judges Constitution Bench quashed the
order of the government dismissing him
from service though giving liberty to the
Government to start a fresh enquiry in
accordance
with
law
against
him,
observing as follows:

"5.....As
he
did
not
receive
subsistence allowance till March 20,
1965, he could not, in our opinion attend
the enquiry. The first payment of
subsistence allowance was made to him
on March 20, 1965, after a part of the
evidence had already been recorded on
February 9,10 and 11, 1965. The enquiry
proceedings during those days are vitiated
accordingly. The report of the Inquiry
Officer based on that evidence is infected
with the same defect. Accordingly, the
order of the Government dismissing him
from service cannot stand. It was passed
in violation of the provisions of Article
311 (2) of the Constitution for appellant
did not receive a reasonable opportunity
of defending himself in the enquiry
proceedings."

11. In State of Maharashtra v.
Chandrabhan Tale (1983) 3 SCC 387, the
Supreme Court has held the second
proviso to Rule 151 (1) (ii) (b) as
unreasonable and void being violative of
Article 311 (2) of the Constitution of
India providing payment of allowance of
only Rupee 1/- per month to a suspended
Government servant holding that normal
subsistence allowance must be paid
during the pendency of the trial of the
criminal proceedings, appeal and even
appeal before the Supreme Court, which
is evident from Paragraph 23 of the
judgment which reads as follows :

"Any departmental enquiry made
without payment of subsistence allowance
contrary to the provision for its payment,
is violative of Article 311 (2) of the
Constitution as has been held by this
Court in the above decision. Similarly,
any criminal trial of a civil servant under
suspension without payment of the
normal subsistence allowance payable to
him under the rule would be violative of
that Article. Payment of subsistence
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
358
allowance at the normal rate pending the
appeal filed against the conviction of a
civil servant under suspension is a step
that makes the right of appeal fruitful and
it is therefore, obligatory. Reduction of
the normal subsistence allowance to the
nominal sum of Rs.1 per month on
conviction of a civil servant under
suspension in a criminal case pending his
appeal filed against that conviction,
whether the civil servant is on bail or has
been lodged in prison on conviction
pending consideration of his appeal, is an
action which stultifies the right of appeal
and
is
consequently
unfair
and
unconstitutional just as it would be
impossible for a civil servant under
suspension who has no other means of
subsistence to defend himself effectively
in the trial court without the normal
subsistence allowance- there is nothing on
record in these cases to show that the civil
servants concerned in these cases have
any other means of subsistence- it would
be impossible for such civil servant
suspended to prosecute his appeal against
his conviction fruitfully without payment
of the normal subsistence allowance
pending his appeal. Therefore, Baban's
contention in the writ petition that the
subsistence allowance is required to
support the civil servant and his family
not only during the trial of the criminal
case started against him but also during
the pendency of the appeal filed in the
High Court or this Court against his
conviction is correct. If any provision in
any rule framed under Article 309 of the
Constitution is illusory or unreasonable, it
is certainly open to the civil servant
concerned to seek the aid of the Court for
declaring that provision to be void. In
these circumstances, I hold that the
second proviso is unreasonable and void
and that a civil servant under suspension
is entitled to the normal subsistence
allowance even after his conviction by the
trial court pending consideration of his
appeal is disposed of finally one way or
the other, whether he is on bail or lodged
in prison on conviction by the trial court."
(emphasis supplied).

12. In Fakirbhai Fulabhai Solanki
vs. Presiding Officer, AIR 1986 SC 1168,
it was held as follows:

"Denial of payment of at least a
small amount by way of subsistence
allowance
would
amount
to
gross
unfairness and violative of principles of
natural justice." (Paragraphs 8 and 9).

13. In Captain M. Paul Anthony Vs.
Bharat Gold Mines Ltd and others (1999)
2 UPLBEC 1280 (SC) = AIR 1999 SC
1416 the Supreme Court had held as
follows:

"......Suspension
notwithstanding
non-payment of subsistence allowance is
an inhuman act which has an unpropitious
effect on the life of an employee. When
the employee is placed under suspension,
he is demobilized and the salary is also
paid to him at a reduced rate under the
nickname of subsistence allowance, so
that the employee may sustain himself.
This Court in O.P. Gupta vs. Union of
India and others, JT 1987 (3) SC 532,
made the following observations with
regard to subsistence allowance;

"An order of suspension of a
Government Servant does not put an end
to his service under the Government. He
continues to be a member of the service in
spite of the order of suspension. The real
effect of suspension as explained by this
Court in Khem Chand v. Union of India,
2 All] Chandan Singh Rathi Vs. District Magistrate, Gautam Budh Nagar and another
359
that he continues to be a member of the
Government service but is not permitted
to work and further during the period of
suspension
he
is
paid
only
some
allowance- generally called subsistence
allowance- which is normally less than
the salary instead of the pay and
allowances he would have been entitled to
if he had not been suspended. There is no
doubt that an order of suspension, unless
the departmental inquiry is concluded
within a reasonable time, affects a
Government servant injuriously. The very
expression 'subsistence allowance' has an
undeniable
penal
significance.
The
dictionary meaning of the word 'subsist'
as given in Short Oxford English
Dictionary, Vol. (II) at p. 2171 is 'to
remain alive as on food, to continue to
exist'. 'Subsistence' means- means of
supporting life, especially a minimum
livelihood."

If, therefore, even that amount is not
paid, then the very object of paying the
reduced salary to the employee during the
period of suspension would be frustrated.
The act of non-payment of subsistence
allowance, would gradually starve himself
to death.

On joining Government service, a
person does not mortgage or barter away
his basic rights as a human being,
including his fundamental rights, in
favour
of
the
Government.
The
Government, only because it has the
power to appoint, does not become the
master of the body and soul of the
employee. The Government by providing
job opportunities to its citizen only fulfils
its obligations under the Constitution,
including the Directive Principles of the
State Policy. The employee, on taking up
an employment only agrees to subject
himself
to
the
regulatory measures
concerning his service. His association
with the Government or any other
employer, like Instrumentalities of the
Government or Statutory or Autonomous
Corporations etc., is regulated by the
terms of contract of service or Service
Rules made by the Central or the State
Government. Under the proviso to Article
309 of the Constitution or other Statutory
Rules including certified standing orders.
The fundamental rights, including the
Right to Life under Article 21 of the
Constitution or the basic human rights are
not surrendered by the employee. That
was the reason why this Court in State of
Maharashtra Vs. Chanderbhan, 1983 (3)
SCR 337, 1983 (3) SCC 387: AIR 1983
SC 803, struck down a Service Rule
which provided for payment of a nominal
amount of rupees one as subsistence
allowance to an employee placed under
suspension. This decision was followed in
Fakirbhai Fulabhai Solanki vs. Presiding
Officer and another, JT 1986 SC 394, and
it was held in that case that if an
employee
could
not
attend
the
departmental proceedings on account of
financial stringencies caused by nonpayment of subsistence allowance, and
thereby could not undertake a journey
away from his home to attend the
departmental proceedings, the order of
punishment,
including
the
whole
proceedings would stand vitiated. For this
purpose, reliance was also placed on an
earlier decision in Ghanshyam Das
Srivastava v. State of Madhya Pradesh
(1973) 1 SCC 656: AIR 1973 SC 1183.

Since in the instant case the appellant
was
not
provided
any
subsistence
allowance during the period of suspension
and the adjournment prayed for by him on
account of his illness, duly supported by
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
360
medical certificates, was refused resulting
an ex parte proceedings against him. We
are of the opinion that the appellant has
been punished in total violation of the
principles of natural justice and he was
liberally not afforded any opportunity of
hearing. Moreover, as pleaded by the
appellant before the High Court as also
before us that on account of his penury
occasioned
by
non-payment
of
subsistence allowance, he could not
undertake a journey to attend the
disciplinary proceedings, the findings
recorded by the Inquiry Officer at such
proceedings, which were held ex parte,
stand vitiated' (Emphasis supplied).

In view of the discussions aforesaid,
we hold that due to non-payment of
subsistence allowance, the inquiry, the
punishment of dismissal of the petitioner
and dismissal of his appeal, all are void
and liable to be quashed by this Court by
grant of a writ of certiorari.

14. The Petitioner has placed
reliance on the decision Jagdamba
Prasad Shukla vs. State of U.P. and
others (2000) SCC 90 para 8:

"where the Supreme Court has held
that
the
payment
of
subsistence
allowance, in accordance with the Rules,
to an employee under suspension is not a
bounty. It is a right. An employee is
entitled to be paid the subsistence
allowance, No justifiable ground has been
made out for non payment of the
subsistence allowance all through the
period of suspension i.e. from suspension
till removal. One of the reasons for not
appearing in inquiry as intimated to the
authorities was the financial crunch on
account of non- payment of subsistence
allowance and the other was the illness of
the appellant. The appellant in reply to the
show cause notice stated that even if he
was to appear in inquiry against medical
advice, he was unable to appear for want
of funds on account of non-payment of
subsistence allowance. It is a clear case of
breach of principles of natural justice on
account of the denial of reasonable
opportunity to the appellant to defend
himself in the departmental enquiry.
Thus, the departmental enquiry and the
consequent order of removal from service
are quashed."

15. The petitioner also placed
reliance on the judgments of this High
Court 2001 (1) UPLBEC 908 K.P. Giri
Vs. State of U.P. and others Para 7 and 8
as well as on (2002 UPLBEC 1321
Bajrang Prasad Srivastava Vs. U.P.
Pariyojana
Prabandha
U.P.
State
Bridge Corporation Ltd. and others. It
was held in the case of K.P. Giri (supra)

"even in the absence of any reply
submitted by the petitioner to the charge
sheet, it was incumbent upon the enquiry
officer to fix the date in the enquiry and to
intimate the petitioner about the same
which has not been done in the present
case. Moreover, from a perusal of the
order of dismissal dated 20.3.98 it will be
seen that the management had produced
the evidence in support of the charges
leveled against the petitioner making had
been accepted by the enquiry officer,
without making any effort to confront the
same to the petitioner. Thus, the entire
proceedings have been conducted in gross
violation of equity, fair play and is in
breach of the principles of natural justice.'

16. In respect of change of inquiry
officer the petitioner has further placed
reliance on 1994 (2) SCC 746 page 12
2 All] Chandan Singh Rathi Vs. District Magistrate, Gautam Budh Nagar and another
361
(Registrar of Co-operative Societies
Madras
and
another
Vs.
F.X.
Farnando) where it was held that justice
must not only be done but must be seen to
be done, therefore, the Supreme Court has
directed that an another enquiry officer be
appointed in order to remove any
apprehension of bias on the part of
respondent. In 1994 Supp. (2) SC 256
Para 5 Indrani Bai (Smt.) Vs. Union of
India and others. The Supreme Court
has held that:

"it is seen that right through the
delinquent officer had entertained a doubt
about the impartiality of the enquiry to be
conducted by the enquiry officer. When
he made a representation at the earliest,
requesting to change the enquiry officer,
the authorities should have acceded to the
request and appointed another enquiry
officer, other than the one whose
objectivity was doubted. "

17. The petitioner has placed
reliance on 1999 (4) A.W.C. 3227 Para 5
Subhash Chand Sharma Vs. M.D. U.P.
Co-Op. Spg. Mills. Fed. Ltd. In this
judgment of this Court it was held that:

"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 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 Meenglas Tea Estate V.
Workmen AIR 1963 SC 1719, the
Supreme Court observed

"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
byway
of
cross
examinations 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 the requirement must be
substantially fulfilled before the result of
the enquiry can be accepted."

19. In S.C. Girotra Vs. United
Commercial Bank 1995 Supp. (3) SCC
212 Supreme Court set aside the dismissal
order which was passed without giving
the employee an opportunity of cross
examination. In Punjab National Bank
V. AIPNBE Federation, AIR 1960 SC
160 (vide para 66) the Supreme Court
held that in such enquiries evidence must
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
362
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 ACC Ltd.
Vs. Their Work Man 1963 II LLJ 396
and in Tata Oil Mills Co. Ltd. Vs. Their
Workmen 1963 II LLJ 78 SC.

20. The petitioner has also placed
reliance on (2001 (4) AWC 3061, P.C.
Chaturvedi
Vs.
U.P.
State
Textile
Corporation Ltd. and another) where the
subsistence allowance were not paid
despite the request made by the petitioner
and the Inquiry Officer passed ex parte
order and recommended dismissal against
the
petitioner
and
the
disciplinary
authority passed the dismissal on the
recommendation made by the Inquiry
Officer such dismissal was quashed.

21. The writ- petitioner when not
paid the subsistence allowance for the
period from the date of suspension to the
date of ex parte inquiry and for non
payment of subsistence allowance the writ
-petitioner had suffered, constitutional
rights of the writ petitioner were found to
have been violated, thus the entire
proceedings
commencing
from
suspension of the petitioner leading to his
dismissal treated to be actuated with
malice in law was therefore quashed.

22. The petitioner placed reliance on
the judgement dated 25.5.2001 of this
court (DB) (M. Katju, R.B. Misra, JJ) in
writ petition no. 7133/2001 (Radhey
Shyam Vs. Secretary Minor Irrigation
Department
and
Rural
Engineering
Services U.P. and others) where the writ
petitioner working as Incharge executive
engineer in the rural engineering services
and minor irrigation department was
charge
sheeted
for
his
alleged
involvement of embezzlement, financial
irregularities and financial loss however
was made handicapped to participate in
the
inquiry
for
non-payment
of
subsistence allowance as well as legal
dues during his suspension and the
request of change of inquiry officer was
not accepted by the competent authority
and the ex parte inquiry was conducted
behind his back without adopting proper
procedure, no specific date, time and
place of inquiry was fixed oral and
documentary evidence against the writ
petitioner was not adduced in his presence
and he was not afforded opportunity to
produce his own witnesses and evidence.
The ex parte inquiry was found illegal and
the order of dismissal of writ petitioner
was quashed while allowing the writ
petition, however, keeping in view the
financial loss and irregularities it was
made open to the respondents to hold a
fresh inquiry in accordance with law and
pass a fresh order. It is pertinent to
mention that the Special Leave Petition
15226/2001 (State of U.P. vs. Radhey
Shyam Pandey and others) preferred
against the above order dated 25.5.2001
was dismissed on 1.1.2002 by the
Supreme Court.

23. It appears that the petitioner has
not been furnished of the documents
which he was demanding during the
course of enquiry. Since in this case no
regular and proper inquiry was held nor
was subsistence allowance paid, hence in
these circumstances, it is clear that the
petitioner had not been afforded a fair
opportunity much less a reasonable
opportunity to defend himself that has
resulted in violation of principle of natural
justice and fair play. A dismissal order
being major punishment have serious
consequences and should be passed only
2 All] Rameshwar Vs. Deputy Director of Consolidation, Bareilly and others
363
after complying with the rules of natural
justice.
The
inquiry
report
is
not
sustainable and therefore it cannot be
relied upon, therefore, the dismissal order
dated 30.11.1998 is liable to be set aside.
However, keeping in view the gravity of
the charges against the petitioner the State
Government is at liberty to make Inquiry
afresh and to conclude the Inquiry
preferably within six months from the
date of receipt of the this order, in
accordance with the law and in the light
of the observations made above till then
the respondent is at liberty not to engage
the petitioner on employment.

24. Let a certified copy of this order
be given to the learned counsel for the
petitioner on payment of usual charges
within a week.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2002

BEFORE
THE HON'BLE YATINDRA SINGH, J.

Civil Misc. Writ Petition No. 16180 of 2002

Rameshwar

...Petitioner
Versus
Deputy Director of Consolidation and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.P.S. Chauhan
Sri Ajay Banot

Counsel for the Respondents:
Sri V.K. Singh
S.C.

U.P. Zamindari Abolition Act- Section
122-B (4F)- benefit can only be given
over land vested in a Gaon Sabha- when
Gaon Sabha is declared to be a town
area or Nagar Panchayat then it ceases
to exist and is divested of all properties-
Gaon Sabha ceased to exist on 10th April
1974 and did not hold any property on
the relevant date under section 122-B
(4F) of the Z.A., the petitioners did not
acquire any rights over the land in
dispute.

Held in para 19

Section 117 (2) or Section 117 A of the Z
A Act perhaps applies to a case when
property within the jurisdiction of one
local authority is vested in any other
local authority, but in case the property
itself falls within the jurisdiction of other
authority, then they do not apply. Rule 3
AAA (2) (a) and (b) are also relevant and
clarify this point. Perhaps the moment
the property of Gaon Sabaha goes to
another local authority then the other
local
authority
becomes
owner
immediately, and no fresh notification is
necessary, but this will await a suitable
case.
Case law referred-
1970RD 450, AIR 1975 SC 2159, AIR 1977 K
83 FB, AIR 1973 All. 403

(Delivered by Hon'ble Yatindra Singh, J.)

1. These writ petitions consider if
benefit under sub section (4-F) of Section
122-B {section 122-B (4-F)} of the UP
Zamindari Abolition and Land Reforms
Act, 1950 (the ZA Act) could be given
over land not vested in a Gaon Sabha and
consequences of declaration of a Gaon
Sabha to be Town Area under section 3 of
the Town Area Act, 1914 (the TA Act).

THE FACTS

2. The land in dispute vested in
Gaon Sabha Rithaura, Bareilly under
section 117 of the ZA Act. The Gaon
Sabha Rithaura was upgraded as town
Area Rithaura by notification dated