# Chandra Kumar Misra v. State of U.P. & Ors. 1200 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 2 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-06
- **Case number:** Service Single No. 14092 of 2018
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-kumar-misra-v-state-of-u-p-ors-1200-indian-law-reports-allahabad-series-45645
- **Pages:** 10

## Headnote

A. Service Law- Suspension - Enquiry -
Civil Services (Classification, Control and
Appeal) Rules: Rule 55 - Petitioner posted
as a Lekhpal was suspended on the basis of an
extremely vague charge sheet. The Court
allowed the petition on the following principles.
(Para 11)

B. One of the fundamental principles of
natural justice is that no man shall be a judge
in his own cause - In the present case, Sub
Divisional Magistrate, Biswan when stated to be a
witness of the facts which formed the basis of the
charges then he would be considered to be a judge
in his own cause. There should have been a change
of the enquiry officer specially when he had himself
lodged a FIR against the petitioner. (Para 4, 7 IV,
12)

C. A decision must be arrived at on some
evidence, which is legally admissible. The
provisions of the Evidence Act may not be
applicable in a departmental proceeding but
the principles of natural justice are - The
function of an Enquiry Officer is to examine the
evidence, 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.
(Para 5, 7, 7 V, 13)

D. It is the basic requirement of rules of
natural justice that an employee be given a
reasonable opportunity of being heard in any
proceeding
which
may
culminate
in
punishment being imposed on the employee -
Denial of enquiry report to the petitioner amounted
to the denial of a reasonable opportunity to object to
the quantum of punishment. (Para 5, 7 VI, 14)

Writ petition allowed. (E-4)

Precedent followed:

## Text

2 All. Chandra Kumar Misra Vs. State of U.P. & Ors.
1199
 as contemplated under Section 20 of the
Contempt
of
the
court
Act,1971(hereinafter referred to as, 'the
Act of 1971') holding that the contempt
petition was preferred at a belated stage.

Learned
counsel
for
the
appellant submits that petition was moved
under Article 215 of the Constitution of
India as there is no limitation provided
under Article 215 of the Constitution of
India.

It is to be noted that an application
can be moved only under Section 12 of the Act
of 1971. No other provision is existing on the
basis of which the appellant can claim benefits
in respect of the period of limitation. If the
appellant was well advised, then, the
application ought to have been moved under
Article 215 of the Constitution of India in the
pending writ petition but that was never done.
Further, appellant has to proceed before this
Court under Section 12 of the Act of 1971 as
the said powers are vested with this Court but
the same was never invoked by the appellant.

Therefore,
in
the
aforesaid
circumstances, this special appeal is liable to
be dismissed and is hereby dismissed as the
same has no merit."

13. After the order dated 15.05.2018
passed in the Special Appeal Defective No.
246 of 2010, the petitioner moved the
application for review of the judgment and
order dated 15.05.2018. The same was rejected
by the Division Bench of this Court vide
judgment and order dated 20.11.2019, which
reads as under:-

"Heard Mr. G.S.L. Verma, learned
counsel for appellant-applicant as well as Mr.
Arun Kumar, learned counsel for respondents
no. 2 and 3 on the application for review and
condonation of delay application.

This review application has been
filed against the order dated 15.5.2018
whereby the special appeal has been dismissed
on merit.

Learned
counsel
for
reviewapplicant submits that the findings recorded by
the appellate Court are perverse and not
sustainable in law.

We are of the considered view that
we in the coordinate Bench cannot look into
the findings recorded by another coordinate
Bench. The scope of review is very limited. The
review application as such deserves to be
dismissed.

In view of above, we do not find any
reason to condone the delay. The application
for condonation of delay (CMA No. 27063 of
2019) and application for review (CMA No.
82290 of 2018) are rejected."

14. Keeping in view the aforesaid
facts and circumstances of the case as
well as the findings recorded by this
Court with regard to limitation provided
for
moving
an
application
for
preparation of decree and for execution
of the order, this Court finds that the
present application has no merit.

15. Accordingly, the application, in
issue, is rejected.

16. The matter is consigned to
record.
----------
(2020)02ILR A1199

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.01.2020

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Service Single No. 14092 of 2018

Chandra Kumar Misra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Mohd. Ali, Lalla Ji Maurya

Counsel for the Respondents:
C.S.C.

A. Service Law- Suspension - Enquiry -
Civil Services (Classification, Control and
Appeal) Rules: Rule 55 - Petitioner posted
as a Lekhpal was suspended on the basis of an
extremely vague charge sheet. The Court
allowed the petition on the following principles.
(Para 11)

B. One of the fundamental principles of
natural justice is that no man shall be a judge
in his own cause - In the present case, Sub
Divisional Magistrate, Biswan when stated to be a
witness of the facts which formed the basis of the
charges then he would be considered to be a judge
in his own cause. There should have been a change
of the enquiry officer specially when he had himself
lodged a FIR against the petitioner. (Para 4, 7 IV,
12)

C. A decision must be arrived at on some
evidence, which is legally admissible. The
provisions of the Evidence Act may not be
applicable in a departmental proceeding but
the principles of natural justice are - The
function of an Enquiry Officer is to examine the
evidence, 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.
(Para 5, 7, 7 V, 13)

D. It is the basic requirement of rules of
natural justice that an employee be given a
reasonable opportunity of being heard in any
proceeding
which
may
culminate
in
punishment being imposed on the employee -
Denial of enquiry report to the petitioner amounted
to the denial of a reasonable opportunity to object to
the quantum of punishment. (Para 5, 7 VI, 14)

Writ petition allowed. (E-4)

Precedent followed:

1. Union of India and others Vs. Ram Lakhan
Sharma, 2018 (7) SCC 670 (Para 4)

2. State of Uttar Pradesh and Others Vs. Saroj
Kumar Sinha, 2010 (2) SCC 772 (Para 5)

3. State of U.P. and another Vs. C.S. Sharma, AIR
1968 SC 158 (Para 7)

4. Chamoli District Cooperative Bank Limited and
another Vs. Raghunath Singh Rana and others,
2016 (12) SCC 204 (Para 7 III)

5. The State of Uttar Pradesh Vs. Mohammad Nooh,
1958 AIR 86 (Para 7 IV)

6. Room Singh Negi Vs. Punjab National Bank, 2009
(2) SCC 570 (Para 7 V)

7. Union of India and Ors. Vs. Mohd. Ramzan Khan,
1991 (1) SCC 588 (Para 7 VI)

8. Managing Director Ecil Hyderabad Vs. B.
Karunakar Etc., 1994 LIC 762 (Para 7 VI)

9. Deepali Gundu Surwase Vs. Kranti Junior
Adhyapak Mahavidyalaya (D.ED.) and Others, 2013
(10) SCC 324 (Para 8)

Present petition assails the orders dated
23.05.1992, passed by the Sub Divisional
Officer,
Biswan,
Dist.
Sitapur
and
Appellate order dated 31.03.2018.

(Delivered by Hon'ble Siddhartha Varma, J.)

1. The petitioner who was posted as a
Lekhpal in Kshetra - Nakela, Tehsil -
Biswan, District - Sitapur was suspended
on 26.11.1991. A charge sheet issued by
the Sub Divisional Magistrate, Biswan
District - Sitapur was served upon him on
31.12.1991. Upon receiving the charge
sheet on 2.1.1992, the petitioner prayed for
time for submitting his reply on 16.1.1992.
When in the meantime on 10.2.1992, the
enquiry office who was appointed by the
Sub Divisional Officer, namely, the Naib
Tehsildar Biswan, Sri Virendra Bahadur
had lodged a First Information Report
against the petitioner, he submitted an
application
to
the
Sub
Divisional
2 All. Chandra Kumar Misra Vs. State of U.P. & Ors.
1201
Magistrate Biswan with a request that the
enquiry officer, namely, Sri Virendra
Bahadur be changed. This application was
filed by the petitioner on 17.2.1992.
However, on 18.2.1992 Sri Virendra
Bahadur, who was sought to be changed,
in pursuance of the earlier application filed
by the petitioner for the extension of time,
extended the time to file the reply to the
charge sheet up to 25.2.1992. However,
this letter never reached the petitioner and,
therefore, while the petitioner was still
waiting for the extension of time to submit
his reply and also for the change of the
enquiry
officer,
the
enquiry
officer
completed the enquiry and on 24.3.1992
submitted his report. Based on the enquiry
report, the punishing authority, that is, the
Sub Divisional Magistrate, Biswan, in his
turn passed an order of dismissal on
23.5.1992.
Thereafter,
the
petitioner
approached the High Court by means of a
writ petition being Service Bench No. 239
of 1992 which was disposed of by an order
dated 14.12.2017 with a direction that the
Appellate Authority was to decide the
appeal within a period of one month from
the passing of the order of the High Court.
When the Appellate Court on 31.3.2018
dismissed the appeal, the instant writ
petition was filed.

2. Learned counsel for the petitioner
has assailed the orders dated 23.5.1992
passed by the Sub Divisional Officer
Biswan and the Appellate order dated
31.3.2018 essentially on the following
grounds:-

I. If the charges which were
levelled
against
the
petitioner
were
perused it was evident that they were
absolutely vague. The charge no. 1 had
implicated the petitioner with a charge that
he had violated a certain code of conduct.
It had stated that as per the Rules, the
petitioner could not have participated in
the activities of any political party but no
rule has been cited. By the charge no. 2 it
was stated that on 25.11.1991, in a rally
held
in
Ramleela
Maindan,
Kasba,
Biswan, District Sitapur wherein some
political leaders, namely, Rewati Raman
Singh, Ram Poojan Patel, Ramnaresh
Kushwaha, Kaushal Kishore and Shiv
Sewak Dixit etc. were present, the
petitioner was also sitting on the dais. It
has been further stated that the petitioner
had read a certain demand letter from the
dais. The charges no. 1 and 2, therefore,
stated that the petitioner was involved in
certain political activities. The charge no.
3 was to the effect that the petitioner had
not done any work connected with his area
and that there was no contribution of the
petitioner towards the family welfare
schemes. By charge no. 4 it was alleged
that some allotment of land was also not
done by the petitioner. The charge no. 5
was a reiteration of charge no. 2.

3. Learned counsel for the petitioner
submits that none of the charges indicated
as to which particular Rule or Law, the
petitioner had violated by participating in
the political activity. Learned counsel for
the petitioner submitted that even though
the petitioner had never participated in any
political activity yet it was not clear from
the charges that which Rule was violated
by the petitioner. Learned counsel for the
petitioner further submitted that a perusal
of the charges no. 3 and 4 also did not
indicate as to where was the shortcoming
in his performance so far as the various
schemes were concerned. He submits that
the charges did not make it clear as to
which land was not allotted by the
petitioner. Therefore, learned counsel for
the petitioner submitted that the enquiry
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
was vitiated on account of the fact that the
charges were not clear.

II. When the petitioner had asked
for time and the enquiry officer had not
responded and in fact the enquiry officer
on
10.2.1992
had
lodged
a
first
information report against the petitioner
then upon the prayer of the petitioner, the
enquiry officer should have got himself
changed.
Learned
counsel
for
the
petitioner submits that a person who was
himself implicating the petitioner in a
criminal case should not have been trusted
with the enquiry which was being
conducted by him. When the first
information report was lodged by the
enquiry
officer
himself
against
the
petitioner and when the petitioner had
objected to the same then the petitioner
could not have trusted his life with the
enquiry officer who had himself lodged
the first information report against the
petitioner.

4. Learned counsel for the petitioner,
therefore, submits that the Enquiry Officer
should always be like an independent
adjudicator and one who was always
obliged to act fairly and impartially. He
has to act in good faith without any bias.
He submits that when the enquiry officer
was virtually the representative of the
punishing authority and he was all set to
punish the petitioner then the Enquiry
Report should have been rejected. Learned
counsel for the petitioner relied upon 2018
(7) SCC 670 (Union of India and others
v. Ram Lakhan Sharma) and since the
petitioner's counsel relied upon on the
paragraph 24, 28, 31, 33 and 34 they are
being reproduced here as under:-

"24.The disciplinary proceedings
are quasi-judicial proceedings and Enquiry
Officer is in the position of an independent
adjudicator and is obliged to act fairly,
impartially.
The
authority
exercising
quasi-judicial power has to act in good
faith without bias, in a fair and impartial
manner.

28. When the statutory rule does
not contemplate appointment of Presenting
Officer
whether
non-appointment
of
Presenting Officer ipso facto vitiates the
inquiry? We have noticed the statutory
provision of Rule 27 which does not
indicate that there is any statutory
requirement of appointment of Presenting
Officer in the disciplinary inquiry. It is
thus clear that statutory provision does not
mandate
appointment
of
Presenting
Officer. When the statutory provision does
not require appointment of Presenting
Officer
whether
there
can
be
any
circumstances where principles of natural
justice can be held to be violated is the
broad question which needs to be
answered in this case. We have noticed
above that the High Court found breach of
principles of natural justice in Enquiry
Officer acting as the prosecutor against the
respondents. The Enquiry Officer who has
to be independent and not representative of
the disciplinary authority if starts acting in
any other capacity and proceed to act in a
manner as if he is interested in eliciting
evidence to punish an employee, the
principle of bias comes into place.

31.A Division Bench of the
Madhya Pradesh High Court speaking
through Justice R.V. Raveendran, CJ (as
he then was) had occasion to consider the
question of vitiation of the inquiry when
the Inquiry Officer starts himself acting as
prosecutor in Union of India and ors. vs.
Mohd. Naseem Siddiqui, ILR (2004) MP
821. In the above case the Court
considered Rule 9(9) (c) of the Railway
Servants (Discipline & Appeal) Rules,
2 All. Chandra Kumar Misra Vs. State of U.P. & Ors.
1203
1968.
The
Division
Bench
while
elaborating fundamental principles of
natural justice enumerated the seven well
recognised facets in paragraph 7 of the
judgment which is to the following effect:

"7. One of the fundamental
principles of natural justice is that no man
shall be a judge in his own cause. This
principle consists of seven well recognised
facets:

(i) The adjudicator shall be
impartial and free from bias,

(ii) The adjudicator shall not be
the prosecutor,

(iii) The complainant shall not
be an adjudicator,

(iv) A witness cannot be the
Adjudicator,

(v) The Adjudicator must not
import his personal knowledge of the facts
of the case while inquiring into charges,

(vi) The Adjudicator shall not
decide on the dictates of his Superiors or
others,

(vii)
The
Adjudicator
shall
decide the issue with reference to material
on record and not reference to extraneous
material or on extraneous considerations.

If any one of these fundamental
rules is breached, the inquiry will be
vitiated."

33. The Division Bench after
elaborately
considering
the
issue
summarised the principles in paragraph 16
which is to the following effect:

"16. We may summarise the
principles thus:

(i) The Enquiry Officer, who is
in the position of a Judge shall not act as a
Presenting Officer, who is in the position
of a prosecutor.

(ii) It is not necessary for the
Disciplinary
Authority
to
appoint
a
Presenting Officer in each and every
inquiry. Non- appointment of a Presenting
Officer, by itself will not vitiate the
inquiry.

(iii) The Enquiry Officer, with a
view to arrive at the truth or to obtain
clarifications, can put questions to the
prosecution witnesses as also the defence
witnesses. In the absence of a Presenting
Officer, if the Inquiry Officer puts any
questions to the prosecution witnesses to
elicit the facts, he should thereafter permit
the delinquent employee to cross-examine
such witnesses on those clarifications.

(iv)
If
the
Inquiry
Officer
conducts a regular examination-in-chief by
leading the prosecution witnesses through
the prosecution case, or puts leading
questions to the departmental witnesses
pregnant with answers, or cross-examines
the defence witnesses or puts suggestive
questions to establish the prosecution case
employee, the Enquiry Officer acts as
prosecutor thereby vitiating the inquiry.

(v) As absence of a Presenting
Officer by itself will not vitiate the inquiry
and it is recognised that the Inquiry
Officer can put questions to any or all
witnesses to elicit the truth, the question
whether an Inquiry Officer acted as a
Presenting Officer, will have to be decided
with reference to the manner in which the
evidence is let in and recorded in the
inquiry.

Whether an Enquiry Officer has
merely acted only as an Enquiry Officer or
has also acted as a Presenting Officer
depends on the facts of each case. To
avoid any allegations of bias and running
the risk of inquiry being declared as illegal
and vitiated, the present trend appears to
be
to
invariably
appoint
Presenting
Officers, except in simple cases. Be that as
it may."

34.
We
fully
endorse
the
principles as enumerated above, however,
the principles have to be carefully applied
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
in facts situation of a particular case. There
is no requirement of appointment of
Presenting Officer in each and every case,
whether
statutory
rules
enable
the
authorities to make an appointment or are
silent. When the statutory rules are silent
with regard to the applicability of any
facet of principles of natural justice the
applicability of principles of natural justice
which are not specifically excluded in the
statutory scheme are not prohibited. When
there is no express exclusion of particular
principle of natural justice, the said
principle shall be applicable in a given
case to advance the cause of justice. In this
context reference is made of a case of this
Court in Punjab National Bank and others
vs. Kunj Behari Misra, 1998 (7) SCC 84.
In the above case, this Court had occasion
to consider the provisions of Punjab
National
Bank
Officer
Employees'
(Discipline
and
Appeal)
Regulations,
1977. Regulation 7 provides for action on
the enquiry report. Regulation 7 as
extracted in paragraph 10 of the judgment
is as follows:

10. .............."7. Action on the
enquiry report.--(1) The disciplinary authority,
if it is not itself the enquiring authority, may,
for reasons to be recorded by it in writing,
remit the case to the enquiring authority for
fresh or further enquiry and report and the
enquiring authority shall thereupon proceed to
hold the further enquiry according to the
provisions of Regulation 6 as far as may be.

(2) The disciplinary authority shall,
if it disagrees with the findings of the enquiring
authority on any article of charge, record its
reasons for such disagreement and record its
own findings on such charge, if the evidence
on record is sufficient for the purpose.

(3) If the disciplinary authority,
having regard to its findings on all or any of
the articles of charge, is of the opinion that any
of the penalties specified in Regulation 4
should be imposed on the officer employee, it
shall, notwithstanding anything contained in
Regulation 8, make an order imposing such
penalty.

(4) If the disciplinary authority
having regard to its findings on all or any of
the articles of charge, is of the opinion that no
penalty is called for, it may pass an order
exonerating the officer employee concerned." "

5. Learned counsel for the petitioner also
relied upon 2010 (2) SCC 772 (State of Uttar
Pradesh and Others vs. Saroj Kumar
Sinha) and submitted that an employee should
be treated fairly in any proceeding which may
culminate in a major punishment. Learned
counsel for the petitioner submitted that an
enquiry officer should not act both as a
prosecutor and as a judge. His function was to
examine facts and evidence which which were
presented
by
the
delinquent
and
the
department. This, he submits, the enquiry
officer had to do objectively even if the
delinquent official is absent. The enquiry
officer had to in the absence of the delinquent
officer assess the evidence produced by the
department and had to see if the unrebutted
evidence was sufficient to prove that the
charges were proved. Since the learned
counsel for the petitioner relied upon
paragraphs 28, 29 and 30 of the judgement
they are being reproduced here as under:-

"28. 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
2 All. Chandra Kumar Misra Vs. State of U.P. & Ors.
1205
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.

29. Apart from the above by
virtue of Article 311(2) of the Constitution
of India the departmental inquiry had to be
conducted in accordance with rules of
natural justice. It is a basic requirement of
rules of natural justice that an employee be
given a reasonable opportunity of being
heard in any proceeding which may
culminate in punishment being imposed on
the employee.

30.
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 enquiry 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."

6. In the instant case, learned counsel
submitted that when the petitioner could
not be present and when the enquiry
officer himself appeared to be on inimical
terms, he having have lodged a first
information report against the petitioner,
the enquiry should not have been allowed
to continue.

7. Learned counsel for the petitioner
further submitted that in the enquiry
neither any place, date or time was fixed
for the appearance of the petitioner or for
the production of any evidence. Witnesses
could not be produced by either sides and,
therefore,
learned
counsel
for
the
petitioner submitted that the enquiry was
absolutely vitiated. Learned counsel for
the petitioner submitted that as per Rule 55
of the C.C.A Rules which provide for a
full fledged enquiry no enquiry took place.
He relied upon a decision reported in AIR
1968 SC 158 (State of U.P. and another
vs. C.S. Sharma). Since he specifically
relied upon paragraphs 6 and 10 of the
judgement they are being reproduced here
as under:-

"6. The first question is whether
this inquiry was made under sub-rule (1)
or (3) of r. 55 of the Civil Services
(Classification,
Control
and
Appeal)
Rules. It is an admitted fact that Sharma
was a temporary employee and therefore
his case would fall to be governed by subrule (3) of r. 55 if it could be said that the
enquiry which was being made was for a
specific fault or on account of his
unsuitability for service. Sub-rule 1 ) of r.
55 is a general rule for enquiries where the
conduct of a person is inquired into for
misconduct but sub-rule (3) says that
subrule shall not apply where it is
proposed to terminate the employement of
a probationer, or to dismiss, remove or
reduce in rank a temporary government
servant for any specific fault or on account
of his unsuitability for the service. Subrule (3) says that in such cases, the
probationer or temporary government
servant concerned shall be apprised of the
grounds of such proposal, given an
opportunity to show cause against the
action to be taken against him, and his
explanation in this behalf, if any. shall be
duly considered before orders are passed
by the competent authority. If the third
sub-rule applied, it is obvious that the kind
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
of enquiry made complied with its
requirements. The first sub-rule, however,-
provides for a full-blooded enquiry which
is the counter-part of a regular trial :
witnesses have to be examined in support
of the allegations, opportunity has to be
given to the delinquent, officer to crossexamine them and to lead evidence in his
defence. In our judgment the present case
was governed by the first sub-rule and not
the third sub-rule. The third sub-rule deals
with the unsuitability of an officer for the
service or with a charge for any specific
fault. This fault means a fault in the
execution of his duties and not a
misconduct such as taking bribe etc. which
are charges of a more serious nature,
affecting the character of the individual
concerned. The collocation of the words
"any specific fault" or "on account of
unsuitability for service" give the clue of
the distinction between the third sub-rule
and the first sub- rule. An officer who is,
for example, habitually lazy or makes
mistakes frequently or is not polite or
decorous may be considered unsuitable for
the service. Another officer who makes a
grievous default in the execution of his
work may be charged for the specific
individual fault, that is a dereliction or
defect in the execution of that duty. Where
there is an allegation that an officer is
guilty of a misconduct such as accepting
bribe or showing favours, the matter is not
one of specific fault in the execution of his
work but something more. That matter will
fall to be governed by the first sub-rule
because you cannot charge a man with
criminal conduct without affording him
adequate opportunity to clear his character.
Mr. Aggarwal fairly pointed out that the
Government had appointed the enquiring
officer to take action under r. 55(1) and it
is thus quite clear that Government viewed
the matter also in this light.

10. We may not omit to state that
there was an allegation against the
Commissioner that he was biased against
Sharma.
It
does
appear
that
the
Commissioner, in one of his letters, stated
that he had heard witnesses and satisfied
himself
that
Sharma
was
definitely
corrupt.
This
statement
of
the
Commissioner showed that :he approached
the case with a feeling that Sharma was
guilty although the State Government
cannot be said to share this bias of the
Commissioner. We would have said
something more about this, if the occasion
had demanded this, but as we are
upholding the order of the High Court on
the ground that no reasonable 8 54
opportunity was afforded to Sharma to
lead his evidence, it is not necessary to say
whether an officer in the position of the
Commissioner, who on the basis of secret
enquiries behind the 'back of ,delinquent
officer has reached the conclusion that
there are good grounds for holding that the
officer is corrupt, should himself ,conduct
the enquiry. That matter may be left for
consideration in another case."

III. Learned counsel for the
petitioner further submitted that domestic
enquiries ought to be conducted honestly,
bonafidely and with a view to determine
whether charges are proved. Care has to be
taken to see that the enquiry does not
become an empty formality. Learned
counsel for the petitioner relied upon 2016
(12)
SCC
204
(Chamoli
District
Cooperative Bank Limited and another
v. Raghunath Singh Rana and others).

IV. Learned counsel for the
petitioner further submitted that the
disciplinary authority, namely, the Sub
Divisional Magistrate Biswan when was
stated to be a witness of the facts which
formed the basis of the charges then he
would be considered to be a judge in his
2 All. Chandra Kumar Misra Vs. State of U.P. & Ors.
1207
own cause. In this regard, learned counsel
relied upon 1958 AIR 86 (The State Of
Uttar Pradesh vs Mohammad Nooh).

V.
Learned
counsel
for
the
petitioner submitted that when the charge itself
stated that the meeting at the Ramlila Maidan
was held on 25.11.1991 then when the enquiry
report which dealt with an incident on
1.3.1992, it could safely be said that the
enquiry report was based on conjectures and
surmises and learned counsel for the petitioner
to substantiate his argument relied upon 2009
(2) SCC 570 (Room Singh Negi vs. Punjab
National Bank). The paragraph 23 of the
judgement upon which learned counsel heavily
relied upon is being reproduced here as under:-

"Furthermore, the order of the
disciplinary authority as also the appellate
authority are not supported by any reason. As
the orders passed by them have severe civil
consequences, appropriate reasons should have
been assigned. If the enquiry officer had relied
upon the confession made by the appellant,
there was no reason as to why the order of
discharge passed by the Criminal Court on the
basis of self-same evidence should not have
been taken into consideration. The materials
brought on record pointing out the guilt are
required to be proved. A decision must be
arrived at on some evidence, which is legally
admissible. The provisions of the Evidence
Act may not be applicable in a departmental
proceeding but the principles of natural justice
are. As the report of the Enquiry Officer
was based on merely ipse dixit as also
surmises and conjectures, the same could
not have been sustained. The inferences
drawn by the Enquiry Officer apparently were
not supported by any evidence. Suspicion, as is
well known, however high may be, can under
no circumstances be held to be a substitute for
legal proof.

VI. The counsel for the petitioner
submitted that there was also a technical flaw
in the enquiry inasmuch as the petitioner was
not served with the enquiry report and was also
not required to show cause with regard to the
punishment. He submitted that denial of the
enquiry report to the petitioner amounted to the
denial of a reasonable opportunity to object to
the quantum of punishment. In this regard, the
learned counsel for the petitioner relied upon
1991 (1) SCC 588 (Union of India and Ors.
vs. Mohd. Ramzan Khan ) and 1994 LIC
762 (Managing Director Ecil Hyderabad ...
vs B. Karunakar Etc. Etc).

VII. Learned counsel for the
petitioner
submitted
that
the
Appellate
Authority also did not act in accordance with
law and only dittoed the findings as were
arrived at by the punishing authority.

VIII. Learned counsel for the
petitioner, therefore, submitted that the enquiry
itself was a slip shod one and no findings of it
could be relied upon and, therefore, the orders
23.5.1992 and 31.3.2018 be quashed and the
writ petition be allowed.

8. The petitioner for having been
kept out of service illegally prayed that he
be compensated by giving him full back
wages. In this regard, the learned counsel
relied upon 2013 (10) SCC 324 (Deepali
Gundu Surwase
v.
Kranti
Junior
Adhyapak Mahavidyalaya (D.ED.) and
Others).

9.
 Learned
Standing
Counsel,
however, in reply submitted that the
charges were evident from the charge
sheet itself. There was nothing vague
about it. He further submitted that when
the petitioner was asked to submit his
reply then he should have submitted the
same and the lodging of the first
information report did not mean that the
enquiry officer would be biased against the
petitioner. He further submitted that the
enquiry could not be said to be vitiated on
account of the fact that the petitioner was
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
also found to be participating in a political
meeting on 1.3.1992. He submitted that it
mattered little that though the petitioner
was charged for allegedly attending the
meeting held on 25.11.1991 but the fact
that he had attended meeting on 1.3.1992
was taken into account. He submits that
the enquiry officer had, after a broad
assessment of the evidence present,
concluded that the petitioner was inclined
towards politics and had the protection of
various politically active leaders and,
therefore, no fault could be found with the
enquiry report. The order of the punishing
authority and the Appellate authority were,
therefore, he submitted absolutely correct.

10. Having heard the learned counsel
for the parties, this Court is of the view
that the order dated 23.5.1992 passed by
the Sub Divisional Magistrate, Biswan,
dismissing the petitioner from service and
the
Appellate
Court's
order
dated
31.3.2018 by which the punishment was
confirmed could not be sustained in the
eyes of law.

11. Firstly, the Court finds that the
charge sheet was extremely vague. No
Rule had been mentioned which had been
relied upon to punish the petitioner. The
only allegation in the charge sheet appears
to be that since the petitioner was a
politically active person he was to be
punished.

12. Secondly, when the charges did
not show as to which land was not allotted
by the petitioner and as to which welfare
programme was not followed properly by
the petitioner there could not have been
any definite reply. Still further when the
petitioner was throughout asking for a
change of the enquiry officer specially
when he had himself lodged a first
information report against the petitioner
then the enquiry officer should not have
been trusted with the life of the petitioner.

13. Thirdly, if the petitioner did not
appear then it was the duty of the enquiry
officer to have come to a definite
conclusion as to whether the petitioner was
guilty and was liable to be punished. The
enquiry officer should have found out as to
whether the unrebutted evidence was also
conclusively proved or not. He should
have seen whether the charges on the basis
of
unrebutted
charges
were
proved
sufficiently or not, to punish the petitioner.

14. Fourth, I find that the enquiry
report and the show cause regarding
punishment were also not served upon the
petitioner.

15. In the end, since the Court finds
that the petitioner was illegally kept out of
service on account of wrong orders having
been passed, the petitioner be given the
benefit of continuity of service and he be
also given his full back wages.

16. The orders dated 23.5.1992
passed by the S.D.M. District Sitapur and
31.3.2018
passed
by
the
District
Magistrate, Sitapur, are quashed..

17. The writ petition is allowed.
----------
(2020)02ILR A1208

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2020

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN,
J.

Service Single No. 20021 of 2018