# Daya Shanker Singh v. State of U.P. through Principal Secretary (Irrigation) & others

- **Citation:** (2002) 1 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-21
- **Case number:** Civil Misc. Writ Petition No. 3002 of 2002
- **Bench:** M. Katju, S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shanker-singh-v-state-of-u-p-through-principal-secretary-irrigation-others-39816
- **Pages:** 2

## Headnote

Constitution of India, Article 226/22 -
Writ Petition maintainability - order
proceeding found totally illegal - writ
petition - held maintainable.

Held - Para 15

The contention of the learned Standing
Counsel that at this stage only notice has
been issued and, therefore, this petition
does not lie at this stage is also of no
substance for the reason that it is well
settled legal position that this court can
entertain the writ petition and may pass
appropriate order. Since we have already
concluded in the forgoing paragraphs of
this judgment that the impugned notice
is without jurisdiction, this Court can
entertain
the
writ
petition
while
exercising its jurisdiction under Articles
226/227 of the Constitution of India and
the petitioner cannot be relegated to the
jurisdiction of the assessing authority to

## Text

1All] Daya Shanker Singh V. State of U.P. through Principal Secretary (Irrigation) & others 271
question whether the accused want to
produce evidence in defence should not
be put to the accused while recording
statement under Section 313 Cr.P.C.
Therefore, question no, 10 was wrongly
put to the petitioners while examining
them under Section 313 Cr.P.C.

7. In view of the above provisions
the question - Whether the accused want
to adduce evidence in defence should not
have been put to the accused while
recording statement under Section 313
Cr.P.C. in Sessions trail. After the
prosecution evidence is recorded and the
statement of the accused is also recorded
an order should be passed under Sections
232 Cr.P.C. If the accused are not
acquitted by that order on the ground that
there is no evidence that the accused
committed the offence, only then the
accused should be called upon to enter
into his defence and adduce any evidence
he may have in support thereof as
provided under Section 233 CR.P.C.

8. In view of what have been said
above, The fact that the accused has stated
in reply to question no. 10 that they do
nowt want to adduce any evidence in
defence is of no avail. They cannot be
debarred from adducing evidence in
defence on that score. The learned
Additional Sessions Judge, therefore, call
upon the petitioners to enter on their
defence and adduce evidence in defence
under Section 233 Cr.P.C. In case, the
petitioners after the order is passed under
Section 232 Cr.P.C. whishes to produce
evidence in defence, they shall be
permitted to produce evidence in defence.
This procedure shall be followed by the
learned
Additional
Sessions
Judges
notwithstanding that the petitioners have
said in reply to the question that they do
not want to produce any evidence in
defence.

The petition is finally disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 3002 of 2002

Daya Shanker Singh

...Petitioner
Versus
State of U.P. through Principal Secretary
(Irrigation)and others ...Respondents

Counsel for the Petitioner:
Sri R.C. Singh

Counsel for the Respondent:
S.C.

Constitution of India - Article 226 - a
vigilance enquiry - No writ as against a
vigilance enquiry as it does not give rise
to any cause of action.

Held - Para 2

A vigilance enquiry is only in the nature
of a preliminary enquiry is only for the
subjective satisfaction of the employer.
It is possible that some fresh evidence or
material may have become available to
the
department
implicating
the
petitioner in some misconduct that may
not have been available earlier. Hence
there is no absolute bar to holding of a
fresh enquiry, even assuming that he
was exonerated earlier, provided there is
some fresh material. Learned counsel for
the petitioner has relied on the G.O.
dated
20/12/65
in
support
of
his
submission that after an employee has
been exonerated in an enquiry a fresh
enquiry or a vigilance enquiry cannot be
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
272
held. We are of the opinion for the
reasons given above that the said G.O. is
only directory and not mandatory in
nature.

(Delivered by Hon'ble M. Katju, J.)

1. The petitioner has challenged a
vigilance enquiry. In our opinion no writ
lies against a vigilance enquiry, since
such enquiry doses not give rise to any
cause of action against which the
petitioner can be aggrieved.

2. Learned counsel for the petitioner
has submitted that on the same charges
the petitioner was exonerated in a
disciplinary
enquiry
and
hence
subsequently a vigilance enquiry cannot
be held. We do not agree with this
submission. A vigilance enquiry is only is
the nature of a preliminary enquiry and
hence
the
petitioner
can
have
no
grievance as a preliminary enquiry is only
for the subjective satisfaction of the
employer. It is possible that some fresh
evidence or material may have become
available to the department implicating
the petitioner in some misconduct that
may not have been available earlier.
Hence there is no absolute bar to holding
of a fresh enquiry, even assuming that he
was exonerated earlier, provided there is
some fresh material. Learned counsel for
the petitioner has relied on the G.O. dated
20/12/65 in support of his submission that
after an employee has been exonerated in
an enquiry a fresh enquiry or a vigilance
enquiry cannot be held. We are of the
opinion for the reasons given above that
the said G.O. is only directory and not
mandatory in nature.

3. The with petition is dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD MARCH 14, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S.RAFAT ALAM, J.

Civil Misc. Writ Petition No. 741 of 2001

M/s
P.N.C.
Construction
Company
Limited

...Petitioner
Versus
State
of
U.P.
through
Institutional
Finance Secretary, U.P., Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri Bharat Ji Agarwal
Sri P.K. Misra
Sri Piyush Agrawal

Counsel for the Respondents:
Mr. Kesarwani
Dr. R.G. Padia
S.C.

Constitution of India, Article 226/22 -
Writ Petition maintainability - order
proceeding found totally illegal - writ
petition - held maintainable.

Held - Para 15

The contention of the learned Standing
Counsel that at this stage only notice has
been issued and, therefore, this petition
does not lie at this stage is also of no
substance for the reason that it is well
settled legal position that this court can
entertain the writ petition and may pass
appropriate order. Since we have already
concluded in the forgoing paragraphs of
this judgment that the impugned notice
is without jurisdiction, this Court can
entertain
the
writ
petition
while
exercising its jurisdiction under Articles
226/227 of the Constitution of India and
the petitioner cannot be relegated to the
jurisdiction of the assessing authority to