# Deen Bandhu (deceased) v. The State of U.P

- **Citation:** (2014) 1 ILRA 451
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deen-bandhu-deceased-v-the-state-of-u-p-42865
- **Pages:** 10

## Headnote

Constitution of India, Art.-311(2)-dismissal
order-class 4th employee refused to work as
domestic servant at house of managerdismissal without supply of enquiry reporton vague allegation about which already
warned-held-non supply of enquiry reportcause prejudice to petitioner-enquiry not
conducted to judge misconduct but to
victimize an illiterate class IV employeedismissal order amounts malicious exercise
of power-passed with retrospective effect
from date of suspension-quashed-with all
consequential benefit with with 6%
interest @-with cost of Rs. 50,000/-
payable by manager.

Held:Para-31
As discussed above, the petitioner was
terminated
illegally
on
vague
and
fanciful charges, disciplinary proceedings
was initiated for ulterior purposes i.e.
not to judge the misconduct of the
petitioner but to victimize him. The
petitioner is entitled to full back wages.

Case Law Discussed:
2011(29)LCD SC; 2010(28) LCD 1688 SC;
2010(28) LCD 1744; 1999(17) LCD 586; 1985 SCC
(L& S) 815; 2002(20) LCD 156; 1974(3) SCC 459;
2010(1) SCC (L& S); 2009(1) SCC (L&S) 398;
2011 (29) LCD 820; 2011(29) LCD 2024;
2008(26) LCD 1044; 2008(8) SCC 236; 2009(27)
LCD 1412; 2009(27) LCD 926; 1993 SCC (L& S)
723; 1993 SCC (L&S)1184; 1991 SCC (L&S) 612;
(1993) 4 SCC 727; (2001) 6 SCC 392; (2008) 9
SCC 31; (2010) 9 SCC 496; (SCC p. 95, para 25);
[(2009) 3 UPLBEC 2774]; (2006) 5 SCC 88;
(2002) 7 SCC 142; [(2009) 3 UPLBEC 2139];
[2004 (22) LCD 770]; (2013) 10 SCC 324; (2007)
2 SCC 433; [2013(136) FLR 908]; (2013) 11 SCC

## Text

1 All] Deen Bandhu (deceased) Vs. The State of U.P

451
rightly been disbelieved by the learned
trial court.

40. Since prosecution has failed to
prove its case beyond reasonable doubt,
there is no need for the Court to probe
into the defence case stated by accused in
their examination under Section 313 Cr.
P.C. where in accused, Gandhi Rana
stated that he had come to Piyara from
where he was arrested by the police to kill
him in a fake encounter, but police party
could not succeed in their effort due to
interference by some persons of public,
hence they falsely implicated him in this
case. Likewise, accused Nawab stated that
he was arrested from his house on
24.6.1983 and was brought to a jungle to
kill him in a fake police encounter, but on
account of arrival of public they could not
do so and ultimately, he was falsely
implicated in this case.

41. Para 8 of the judgment delivered
by Division Bench of this Court in State
of U.P. Vs. Ram Ajorey & others, 1991
Cr. L. J. : 2020 reads as under:-

"8- The law is well settled that appeals
from
acquittal
are
allowed
only
in
exceptional
circumstances.
It
is
an
extraordinary remedy. The appeal by
Government should be made judiciously and
only in cases where the judgment is so
clearly wrong that its maintenance would
amount to a serious miscarriage of justice or
when a principle is involved or the question
is one of great importance or of great public
importance.
The
burden
is
on
the
Government to show that the acquittal is
wrong and strong and urgent grounds must
be made out to justify interference. When
there is reasonable doubt as to the guilt of
deceased, the High Court will not interfere
nor will it interfere merely because upon
evidence the lower court might have come to
the conclusion of guilt, unless it is quite clear
that the acquittal is wrong. The High Court
will not also interfere merely because it
might itself, as an original court, have arrived
at a different conclusion. Where an appeal
against acquittal turns on the facts it would
only succeed if the judgment of acquittal is
clearly wrong and involves a miscarriage of
justice or when the trial judge has erred in
failing to draw the clear, indubitable and
irresistible inference from the facts or when
the trial courts appreciation of evidence is
vitiated by failure to take note of a very
important fact or where finding of fact is
based on an erroneous rejection of evidence.
Thus the High Court will only interfere if it is
proved without any doubt not only that the
accused is guilty, but that he has been
acquitted on unreasonable grounds. "

42. The view taken by the learned trial
court is the appropriate view in the facts,
circumstances and in the light of evidence
adduced by the prosecution, therefore, the
aforesaid impugned judgment and order
dated 4.7.1984 needs no interference by
this appellate Court.

43. In view of the above, appeal
lacks merit and is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.03.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Service Single No. 4782 of 2010.

Deen Bandhu (deceased)...... Petitioner
Versus
The State of U.P. .............. .Respondent

Counsel for the Petitioner:
R.C. Saxena, R.C. Saxena
452 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Respondent:
C.S.C., U.S. Sahai

Constitution of India, Art.-311(2)-dismissal
order-class 4th employee refused to work as
domestic servant at house of managerdismissal without supply of enquiry reporton vague allegation about which already
warned-held-non supply of enquiry reportcause prejudice to petitioner-enquiry not
conducted to judge misconduct but to
victimize an illiterate class IV employeedismissal order amounts malicious exercise
of power-passed with retrospective effect
from date of suspension-quashed-with all
consequential benefit with with 6%
interest @-with cost of Rs. 50,000/-
payable by manager.

Held:Para-31
As discussed above, the petitioner was
terminated
illegally
on
vague
and
fanciful charges, disciplinary proceedings
was initiated for ulterior purposes i.e.
not to judge the misconduct of the
petitioner but to victimize him. The
petitioner is entitled to full back wages.

Case Law Discussed:
2011(29)LCD SC; 2010(28) LCD 1688 SC;
2010(28) LCD 1744; 1999(17) LCD 586; 1985 SCC
(L& S) 815; 2002(20) LCD 156; 1974(3) SCC 459;
2010(1) SCC (L& S); 2009(1) SCC (L&S) 398;
2011 (29) LCD 820; 2011(29) LCD 2024;
2008(26) LCD 1044; 2008(8) SCC 236; 2009(27)
LCD 1412; 2009(27) LCD 926; 1993 SCC (L& S)
723; 1993 SCC (L&S)1184; 1991 SCC (L&S) 612;
(1993) 4 SCC 727; (2001) 6 SCC 392; (2008) 9
SCC 31; (2010) 9 SCC 496; (SCC p. 95, para 25);
[(2009) 3 UPLBEC 2774]; (2006) 5 SCC 88;
(2002) 7 SCC 142; [(2009) 3 UPLBEC 2139];
[2004 (22) LCD 770]; (2013) 10 SCC 324; (2007)
2 SCC 433; [2013(136) FLR 908]; (2013) 11 SCC
622.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri R.C.Saxena, learned
counsel for the petitioner, Sri U.S. Sahai,
learned
counsel
appearing
for
the
respondent nos. 3 and 4 and the learned
Standing
Counsel
appearing
for
respondent nos. 1 and 2.

2. During the pendency of this writ
petition, Deen Bandhu-the petitioner died
on 15.9.2013. The legal heir of the
petitioner, Smt. Anita has been substituted
on 13.12.2013.

3. For the sake of convenience the
deceased is being referred to as petitioner.
The brief facts of the case is that the
petitioner was appointed as class IV
employee
on
01.08.1963
with
the
respondent-college,namely, Khem Karan
Inter College, Laharpur, District Sitapur
which is a college recognized under the
Intermediate Act and the Rules and
Regulations
framed
thereunder.
The
petitioner was suspended on 30.12.1991 and
thereafter he was issued charge-sheet dated
18.1.1992 containing as many as 12
charges. The petitioner submitted his reply
on 20.02.1992 to the charge-sheet, denying
the allegations and further stated that he did
not have faith in the inquiry officer. The
inquiry officer fixed 13.3.1992 for inquiry
and the petitioner, before the date fixed for
inquiry, submitted an application dated
9.3.1992, to the inquiry officer, stating that
the appointment of the inquiry officer is
illegal.

4. The petitioner did not participate
in the inquiry and the inquiry proceeded
exparte.
The
inquiry
officer
after
conclusion of the inquiry submitted
inquiry report dated 26.3.1992. The
disciplinary authority i.e. the Principal of
the College, issued show cause notice
dated 8.4.1992 to the petitioner as
required under the Regulations. The
inquiry report was not supplied alongwith
show cause notice. The respondent no.4
passed the impugned order dated 1.6.1992
1 All] Deen Bandhu (deceased) Vs. The State of U.P

453
dismissing the petitioner from service
holding that all the charges has been
proved by the inquiry officer.

5. This Court, vide order dated
29.3.2012 directed the District Inspector of
Schools to decide the appeal/representation
of the petitioner. The District Inspector of
Schools,
vide
order
dated
1.5.2012
dismissed the representation stating that
since it was made after 17 years, the same
was barred under Regulation 31 of the
Regulations.

6. The submission of Sri R.C. Saxena,
learned counsel for the petitioner, is that the
petitioner was not supplied with the inquiry
report and hence petitioner has been
prejudiced. It has further been stated that
even, in case the petitioner had not
participated in the inquiry but he has
submitted his reply, it was incumbent upon
the inquiry officer to have considered his
objections and then discussed the material
in order to prove the charges. It was
specifically stated in the memo of appeal
that inquiry report has not been furnished.
The said fact has also been pleaded in the
writ petition. This factum is not denied by
the respondent that inquiry report was not
made available to the petitioner, neither it
has been filed along with the counter
affidavit. The inquiry is vitiated on the
ground of bias as no order was passed on
the application of the petitioner for change
of enquiry officer.

7. Sri R.C. Saxena, learned counsel
for the petitioner has relied upon the
following judgments in support of his
arguments. Sharda vs. District Deputy
Director Consolidation 2011 (29) LCD
SC,
Sant
Lal
Gupta
vs.
Modern
Corporation Group 2010 (28) LCD 1688
SC,
Memendra
Pratap
vs.
Deputy
Registrar 2010 (28) LCD 1744, Smt.
Sandhya Gupta vs. D.M., Auraiya 1999
(17) LCD 586, Anil Kumar vs. Presiding
Officer & others 1985 SCC (L&S) 815,
P.C. Chaturvedi vs. U.P. State Textile
Corporation 2002 (20) LCD 156, S.
Parthasarathi vs. State of A.P. 1974 (3)
SCC 459, State of U.P. vs. Saroj Kumar
Sinha 2010 (1) SCC (L&S), Roop Singh
Negi vs. P.N.B. 2009 (1) SCC (L&S) 398,
2011 (29) LCD 820, Yog Narain Dubey
vs. M.D. 2011 (29) LCD 2024, Vijay
Kumar Singh vs. Dy. Director 2008 (26)
LCD 1044, State of Uttranchal vs. Kanak
Singh 2008 (8) SCC 236, Sher Bahadur
Singh vs. Phoolpati 2009 (27) LCD 1412,
Gyan Das Sharma vs. State of U.P. 2009
(27) LCD 926, D.R. Yadav vs. JMA
Indushraj 1993 SCC (L&S) 723, M.D.
ECIL vs. B. Karunakar 1993 SCC (L&S)
1184, U O I vs. Mohd. Ramzan Khan
1991 SCC (L&S) 612.

8. In rebuttal, it has been argued that
a fair inquiry procedure was followed.
The petitioner has failed to show that he
has been prejudiced by non- supply of the
inquiry report and at no point of time any
demand was made for supply of the
inquiry report. The inquiry has proceeded
ex parte and thereafter on the basis of
material which was available on record,
charges was proved, on the basis of
inference drawn from the inquiry report.

9. Sri U.S. Sahai, learned counsel
for respondent Nos. 3 and 4 has relied
upon the judgements in the case of
Managing Director, ECIL, Haiderabad
and others vs. B. Karunakar, (1993) 4
SCC 727, State of U.P. vs. Harendra
Arora and another (2001) 6 SCC 392 and
Haryana
Financial
Corporation
and
another Vs. Kailash Chandra ahuja (2008)
9 SCC 31.
454 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Rival contentions fall for
consideration.

11. It is admitted between the parties
that inquiry report was not supplied to the
petitioner. The question of prejudice
caused to the petitioner can be examined
by perusal of the impugned order dated
1.6.1992, passed by the disciplinary
authority.

12. From perusal of the impugned
order, it is evident that charges has been
partially reproduced and the reply of the
petitioner has been recorded in two
sentences and thereafter it has been stated
that the disciplinary authority agrees with
the findings of the inquiry officer and
hence the charge is proved. There is no
discussion of the evidences as to how the
inquiry officer has reached his conclusion
nor the discussion of the inquiry officer
has been referred to. There is no whisper
in the impugned order to show what
weighed upon the mind of the enquiry
officer in drawing his conclusion, the
evidence and the material/record that was
placed before him. The impugned order is
cryptic and unsustainable. The appeal that
was directed to be decided, the District
Inspector of Schools has adopted a hyper
technical approach in dismissing the
appeal on the ground of laches. The
District Inspector of Schools did not
decide the appeal on merit inspite the
order of the Court. There is no finding of
the District Inspector of Schools as to
whether
inquiry
report
was
made
available to the petitioner or not.

13. In Kranti Associates Private Ltd.
vs. Masood Ahmad Khan, (2010) 9 SCC
496 the Supreme Court emphasized that
judicial
courts
and
quasi
-judicial
authorities must pass reasoned order. The
principles culled out in that judgment are
extract below:

"a. In India the judicial trend has
always been to record reasons, even in
administrative decisions, if such decisions
affect anyone prejudicially.

b. A quasi-judicial authority must
record
reasons
in
support
of
its
conclusions.

c. Insistence on recording of reasons
is meant to serve the wider principle of
justice that justice must not only be done
it must also appear to be done as well.

d. Recording of reasons also operates
as a valid restraint on any possible
arbitrary exercise of judicial and quasijudicial or even administrative power.

e. Reasons reassure that discretion
has been exercised by the decision maker
on relevant grounds and by disregarding
extraneous considerations.

f. Reasons have virtually become as
indispensable a component of a decision
making process as observing principles of
natural justice by judicial, quasi-judicial
and even by administrative bodies.

g. Reasons facilitate the process of
judicial review by superior Courts.

h. The ongoing judicial trend in all
countries committed to rule of law and
constitutional governance is in favour of
reasoned decisions based on relevant
facts. This is virtually the life blood of
judicial decision-making justifying the
principle that reason is the soul of justice.

i. Judicial or even quasi-judicial
opinions these days can be as different as
the judges and authorities who deliver
them. All these decisions serve one
common purpose which is to demonstrate
by reason that the relevant factors have
been objectively considered. This is
important for sustaining the litigants' faith
in the justice delivery system.
1 All] Deen Bandhu (deceased) Vs. The State of U.P

455

j.
Insistence
on
reason
is
a
requirement
for
both
judicial
accountability and transparency.

k. If a Judge or a quasi-judicial
authority is not candid enough about
his/her decision making process then it is
impossible to know whether the person
deciding is faithful to the doctrine of
precedent
or
to
principles
of
incrementalism.

l. Reasons in support of decisions
must be cogent, clear and succinct. A
pretence of reasons or "rubber-stamp
reasons" is not to be equated with a valid
decision-making process.

m. It cannot be doubted that
transparency is the sine qua non of
restraint on abuse of judicial powers.
Transparency in decision making not only
makes the judges and decision makers
less prone to errors but also makes them
subject to broader scrutiny. (See David
Shapiro in Defence of Judicial Candor.)

n. Since the requirement to record
reasons emanates from the broad doctrine of
fairness in decision-making, the said
requirement is now virtually a component
of human rights and was considered part of
Strasbourg Jurisprudence. See Ruiz Torija
v. Spain EHRR, at 562 para 29 and Anya v.
University of Oxford, wherein the Court
referred to Article 6 of the European
Convention of Human Rights which
requires, "adequate and intelligent reasons
must be given for judicial decisions".

o. In all common law jurisdictions
judgments play a vital role in setting up
precedents for the future. Therefore, for
development of law, requirement of
giving reasons for the decision is of the
essence and is virtually a part of "Due
Process"."

14. The aforesaid principles was
reiterated by the Supreme Court in
Sharda's case (supra) as well as Sant Lal
Gupta's case (supra).

15. In Roop Singh Negi's case
(supra), the Supreme Court held that
departmental proceeding is a quasijudicial proceeding. The inquiry officer
performs a quasi-judicial function. The
inquiry officer has a duty to arrive at a
finding upon taking into consideration the
materials brought on record by the parties.
The inquiry officer should appreciate the
evidences and the conclusion should be
based on evidence. The inquiry report if
based on conjectures and surmises cannot
be sustained. Suspicion howsoever high,
cannot be a substitute for legal proof.

16. Yet again in M.V. Bijlani v.
Union of India this Court held: (SCC p.
95, para 25)

"25. ....Although the charges in a
departmental proceedings are not required
to be proved like a criminal trial, i.e.,
beyond all reasonable doubts, we cannot
lose sight of the fact that the Enquiry
Officer performs a quasi-judicial function,
who upon analysing the documents must
arrive at a conclusion that there had been
a preponderance of probability to prove
the charges on the basis of materials on
record. While doing so, he cannot take
into consideration any irrelevant fact. He
cannot refuse to consider the relevant
facts. He cannot shift the burden of proof.
He cannot reject the relevant testimony of
the witnesses only on the basis of
surmises and conjectures. He cannot
enquire into the allegations with which
the delinquent officer had not been
charged with."

17. In Saroj Kumar Sinha's case
(supra), the Supreme Court held that in
456 INDIAN LAW REPORTS ALLAHABAD SERIES

case the government servant fails to
appear, the inquiry officer can proceed ex
parte. Even in such circumstances, it is
incumbent on inquiry officer to record
statement of witnesses mentioned in
charge-sheet and thereafter assess whether
unrebutted evidence is sufficient to hold
that charges are proved. Para 30, 31 and
32 is as follows:-

"30. When a department 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.

"31. In Shaughnessy v. United States
(Jackson, J.), a Judge of the United States
Supreme Court has said: (L Ed p. 969)

32. The effect of non disclosure of
relevant documents has been stated in
Judicial Review of Administrative Action
by De Smith, Woolf and Jowell, Fifth
Edition, Pg.442 as follows:

"If relevant evidential material is not
disclosed at all to a party who is
potentially prejudiced by it, there is prima
facie unfairness, irrespective of whether
the material in question arose before,
during
or
after
the
hearing.
This
proposition can be illustrated by a large
number of modern cases involving the use
of undisclosed reports by administrative
tribunals and other adjudicating bodies. If
the deciding body is or has the trappings
of a judicial tribunal and receives or
appears to receive evidence ex parte
which is not fully disclosed, or holds ex
parte inspections during the course or
after the conclusion of the hearing, the
case for setting the decision aside is
obviously very strong; the maxim that
justice must be seen to be done can
readily be invoked."

18. In Harendra Arora's case (supra)
the delinquent was seeking the order of
his dismissal to be quashed on the ground
of non-compliance of rule 55A Civil
Services CCA Rules for not furnishing the
inquiry report. The Supreme Court has
rejected the plea that the principle of nonsupply of inquiry report cannot be applied
mechanically unless prejudice or failure
of justice is shown, or noticed. Para 11,
12 and 13 is as follows:-

"11. From a minute reading of the
decision in the case of ECIL, it would
appear that out of the seven questions
framed, while answering question nos.
(vi) and (vii), the Constitution Bench laid
down that the only exception to the
answer given in relation to those
questions was where the service rules
with regard to the enquiry proceedings
themselves made it obligatory to supply a
copy of the report to the employee. While
answering the other questions, much less
answer to question no. (v) which relates to
prejudice,
the
Bench
has
nowhere
categorically stated that the answer given
would apply even in a case where there is
requirement of furnishing a copy of the
enquiry report under the statutory rules.
As
stated
above,
while
answering
question nos. (vi) and (vii), the Bench has
expressly excluded the applicability of the
same to the cases covered by statutory
1 All] Deen Bandhu (deceased) Vs. The State of U.P

457
rules whereas such exception has not been
carved out in answer to question no. (v)
which shows that the Bench having found
no difference in the two contingencies one
covered by Article 311(2) and another
covered by statutory rules has not made
any distinction and would be deemed to
have laid down the law uniformly in both
the contingencies to the effect that if
enquiry report is not furnished, the same
ipso facto would not invalidate the order
of punishment unless the delinquent
officer has been prejudiced thereby more
so when there is no rationale for making
any distinction therein.

12. Thus, from the case of ECIL, it
would be plain that in cases covered by the
constitutional mandate, i.e., Article 311(2),
non- furnishing of enquiry report would not
be fatal to the order of punishment unless
prejudice is shown. If for infraction of a
constitutional provision an order would not
be invalid unless prejudice is shown, we fail
to understand how requirement in the
statutory rules of furnishing copy of enquiry
report would stand on a higher footing by
laying down that question of prejudice is not
material therein.

13. The matter may be examined
from another view point. There may be
cases where there are infractions of
statutory provisions, rules and regulations.
Can it be said that every such infraction
would make the consequent action void
and/or invalid? The statute may contain
certain substantive provisions, e.g., who is
the competent authority to impose a
particular punishment on a particular
employee. Such provision must be strictly
complied with as in these cases the theory
of substantial compliance may not be
available. For example, where a rule
specifically provides that the delinquent
officer shall be given an opportunity to
produce evidence in support of his case after
the close of the evidence of the other side and
if no such opportunity is given, it would not
be possible to say that the inquiry was not
vitiated. But in respect of many procedural
provisions, it would be possible to apply the
theory of substantial compliance or the test
of prejudice, as the case may be. Even
amongst procedural provisions, there may be
some provisions of a fundamental nature
which have to be complied with and in
whose case the theory of substantial
compliance may not be available, but the
question of prejudice may be material. In
respect of procedural provisions other than of
a fundamental nature, the theory of
substantial compliance would be available
and in such cases objections on this score
have to be judged on the touchstone of
prejudice. The test would be, whether the
delinquent officer had or did not have a fair
hearing. In the case of Russel vs. Duke of
Norfolk & Ors., 1949 (1) All E.R. 109, it was
laid down by the Court of Appeal that the
principle of natural justice cannot be reduced
to any hard and fast formulae and the same
cannot be put in a straitjacket as its
applicability depends upon the context and
the facts and circumstances of each case
(supra)."

19. The principle of prejudice
caused was reiterated by Supreme Court
in Kailash Chandra Ahuja's case (supra).
Para 36 and 39 is as follows:-

"36. The recent trend, however, is of
`prejudice'. Even in those cases where
procedural requirements have not been
complied with, the action has not been
held ipso facto illegal, unlawful or void
unless it is shown that non-observance
had prejudicially affected the applicant.

39. . In B. Karunakar's case (supra),
this Court considered several cases and
458 INDIAN LAW REPORTS ALLAHABAD SERIES

held that it was only if the Court/Tribunal
finds that the furnishing of the report
"would have made a difference" to the
result in the case that it should set aside
the order of punishment. The law laid
down in B. Karunakar was reiterated and
followed in subsequent cases also (vide
'State Bank of Patiala v. S.K. Sharma,
M.C. Mehta v. Union of India."

20. Applying the law in the facts of
the present case, the charges are vague
and not specific, for some charges
warning had already been issued in the
past, the same allegation could not be
included in the charge. The petitioner had
given a detailed reply dated 20.2.1992 to
each charge, stating therein that the
charges are not only false, but has been
issued to victimize the petitioner, as the
petitioner had refused to work in the
house of the manager as domestic servant.
The motor of the tube-well was not stolen
but was in the house of the manager. The
clerk in connivance with the manager
used to extort part of the salary, if not
paid, the employees were subjected to
harassment.
Petitioner
had
filed
a
complaint with CJM. A widow class IV
employee and the another employee were
also subjected to the same treatment for
refusing to work at the manager's house.
The petitioner is illiterate and the clerk
used to obtain signatures on papers, which
is now being used against the petitioner.
The order impugned does not reflect any
averment of the petitioner's reply.

21. The charges are vague, details of
the substance of the imputation of the
allegations of misconduct is missing. The
enquiry report deliberately has not been
filed. The enquiry has not been conducted
bonafide and the enquiry was an empty
formality to victimize an illiterate class IV
employee, as he refused to succumb to the
exploitation of the officiating principal
and the manager. The duty is to act fairly,
not so much to act judicially. Action
should be impartial and should be free
from
appearance
of
unfairness,
unreasonableness and arbitrariness.

22. Non supply of enquiry report, in
the present, case has caused prejudice to
the petitioner. The petitioner has a right to
know as to how his detail reply, to the
charges, has been dealt with by the
enquiry
officer
and
on
which
material/evidence the charges has been
substantiated. The impugned order is a
non-speaking order, it does not give any
reasons for substantiating the charges, it
merely draws the inference of guilt of the
petitioner.

23. The law of the subject is settled in
Sher Bahadur Singh (dead) substituted by
Smt. Phoolpati and Sant Kumar Singh
Versus State of U.P. and others [(2009) 3
UPLBEC 2774] relying upon M.V. Bijlani v.
Union of India and others, (2006) 5 SCC 88;
Sher Bahadur v. Union of India and others,
(2002) 7 SCC 142, held that in case the
delinquent employee does not cooperate
even then it shall be incumbent upon the
enquiry officer to proceed ex-parte and
record oral evidence in support of the
allegations contained in the charge-sheet.
After receipt of the report from the enquiry
officer, it shall be necessary for the punising
authority to serve show cause notice along
with copy of the enquiry report, and
thereafter,
pass
appropriate
order
in
accordance with law. Refer State of Uttar
Pradesh and others v. Prem Kumar Dubey
and another, [(2009) 3 UPLBEC 2139],
Ambika Prasad Srivastava v. State Public
Services Tribunal, Lucknow and others,
[2004 (22) LCD 770]
1 All] Deen Bandhu (deceased) Vs. The State of U.P

459

24. The impugned order is malicious
exercise of power, the charge-sheet dated
18.1.1992 was issued fixing the date of
enquiry on 13.8.1992, the petitioner
submitted his reply dated 20.2.1992
however did not participate and the
enquiry was concluded and enquiry report
dated 26.3.1992 was submitted. No other
date was fixed ex parte for the enquiry.
The entire enquiry was concluded within
thirteen days. The allegation of the
petitioner that he is being victimised is
established. The entire enquiry was a
camouflage, the purpose of enquiry was
not misconduct but victimization.

25. The order of termination has
been passed from a retrospective date i.e.
30.12.1991
i.e.
from
the
date
of
suspension that itself is illegal. The order
of termination cannot be retrospective or
prospective.

26. The contention of the learned
counsel for the respondent that no prejudice
was caused to the petitioner and, therefore,
no inquiry report was required to be supplied
can not be accepted. The impugned order is
bald, cryptic and devoid of reasons. Had the
enquiry report been supplied to the
petitioner, the order impugned could be
sustained, as in that eventuality the
disciplinary authority would not be required
to give separate reasons from that of the
enquiry officer. Non-supply of enquiry
report, required the disciplinary authority to
state the reasons that weighed with the
enquiry officer in arriving at the conclusions
in respect of each charge. Non disclosure of
reasons seriously prejudices the cause of the
petitioner.

27. The learned counsel for the
petitioner submits that the petitioner will
be entitled to back wages as the
termination is illegal. The argument has
been opposed by the respondents.

28. The law on grant of back wages
on
reinstatement,
as
applicable
to
industrial jurisprudence, has been settled
by the Hon'ble Supreme Court in various
judgments.

29. In Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya
(D.ED.) and others (2013) 10 SCC 324, the
Court held, in case of wrongful termination
of service, reinstatement with continuity of
service and back wages is the normal rule.
Where the Court reaches a conclusion that
the inquiry was held in respect of frivolous
issue or petty misconduct, as a camouflage to
get rid of the employee or victimise him, and
the punishment is a result of such scheme or
intention. In such cases, the principles
relating to back wages will be the same as
those applied in the cases of illegal
termination. (Refer)

30. J.K. Synthetics Ltd. vs. K.P.
Agrawal (2007) 2 SCC 433, Assistant
Engineer Rajasthan Dev Corp. and
another versus Gitam Singh, [2013(136)
FLR 908], Shiv Nandan Mahto vs. State
of Bihar (2013) 11 SCC 622.

31. As discussed above, the
petitioner was terminated illegally on
vague and fanciful charges, disciplinary
proceedings was initiated for ulterior
purposes i.e. not to judge the misconduct
of the petitioner but to victimize him. The
petitioner is entitled to full back wages.

32. The impugned orders dated
1.5.2012 and 1.6.1992, passed by District
Inspector
of
Schools,
Sitapur
and
Principal respondent no. 4 respectively is
hereby quashed. The back wages as well
460 INDIAN LAW REPORTS ALLAHABAD SERIES

as post retirement benefits shall be paid
by the District Inspector of Schools,
Sitapur within a period of four months
from the date of service of this order,
failing which interest @ 6% shall be paid
from the date of termination.

33. The writ petition is allowed with
all consequential benefits.

34. Costs assessed as Rs.50,000/- to
be paid by the Committee of Management
respondent no. 3.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2014

BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Writ Petition No. 5553 of 2013

Meva Lal............................ Petitioner
Versus
State of U.P. & Ors....... .......Respondents

Counsel for the Petitioner:
Sri Kamlesh Shukla, Sri S.C. Gupta

Counsel for the Respondents:
A.G.A.

Constitution of India, Art. 226-Release of
vehicle-offence under section 3/7 E.C.
Act-rejected by Court below-as Truck in
question carrying 400 bags uria-on
patrolling
police
found
uria
bags
unloaded from truck and loaded with
tractor
trolly-nothing
whisper
about
knowledge of any illegal activities of
driver-in view of law laid down by Apex
Court in case of Surendra Bhai Ambalal
Desai-Truck still standing police station
with 400 bags uria un-attand getting
junk day by day-no useful purpose to
remain with police station-order by
Court
below
quashed-direction
for
release given.
Held:Para-12
The facts of the case in hand show that
the truck of the petitioner was seized on
7.9.2012 and it is still standing in the
premises of Police Station Bindki, District
Fatehpur unattended getting junk day by
day, which situation is in clear violation
of the law laid down by Sunderbhai
Ambalal Desai (Supra) case cited above.

Case Law Discussed:
{2003(1) JIC 615(SC)}

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. By means of this writ petition, the
petitioner has prayed for quashing of two
orders first dated 19.11.2012 passed by the
District Magistrate, Fatehpur and the second
dated 12.3.2013 passed by Additional District
and Sessions Judge, Court No.2, Fatehpur,
refusing to release the truck of the petitioner
bearing No.UP-70 BT 8968 seized under
section 3/7 Essential Commodities Act.

2. Apart from praying for a writ of
certiorari for quashing both the aforesaid
orders the petitioner has also prayed to
issue writ of mandamus commanding the
respondents to release the Truck No. UP70 BT 8968 in his favour.

3. The respondent no. 4 Zila Krishi
Adhikari,
District
Fatehpur
and
respondent No. 6 Sub-Inspector Lallan
Singh have filed counter affidavits, which
are on record.

4. Heard learned counsel for the
petitioner and learned AGA appearing on
behalf of respondents.

5. Some background facts in brief
are that on 7.9.2012 at about 9-10 p.m.
when the police was on patrolling duty,
Truck No. UP-70 BT 8968 loaded with
400 bags of urea fertilizers of IFFCO was