# Devendra Singh Sisodiya v. State of U.P. Thru' Secretary U.P. and others

- **Citation:** (2012) 2 ILRA 642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-29
- **Case number:** Civil Misc. Writ Petition No. 58347 of 2006
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-singh-sisodiya-v-state-of-u-p-thru-secretary-u-p-and-others-42243
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226Dismissal on ground of absent from
duty-petitioner suffering form T.B. Duly
supported by medical certificate-could
not appear before inquiry officer-without
fixing another date place and timewithout even examining the authority on
behalf
of
Department
(author
of
chargesheet)-submitted
report
as
petitioner fail to appear in inquiry-hence
nothing to say-appeal also dismissedeven finding of guilt recorder without
disclosing material on bass of inquiry
report submitted on the document the
basis of recording the finding-merely
saying-petitioner did not participate on
submitted any defence-dismissal order
quashed with liberty to pass from order
within period of two month.

Held: Para 13 and 14

As per the law laid down by the Supreme
Court it is incumbent upon the enquiry
officer to have discussed the report of
the Sr. Station Officer, Taj Depot, Agra
and the documents relied upon while
2 All] Devendra Singh Sisodiya V. State of U.P. and others
643
writing the said report. The author of the
document was also required to have
been examined in the enquiry. It is no
defence to the respondents to bring
home a finding of guilt against the
petitioner merely on the ground that the
petitioner did not participate or did not
submit his defence reply to the charge
sheet.

In
view
of
the
above
facts
and
circumstances of the case and the legal
position settled by the Supreme Court,
this writ petition deserves to be allowed.
Accordingly the writ petition is allowed
and the impugned order dated 22.6.2004
and 21.9.2004 are quashed. The enquiry
officer shall proceed to pass fresh order
after taking into consideration the relied
upon document and after discussing the
material on the basis of which such
report has been prepared by Shri Mahesh
Chandra Kamal, Sr. Station Officer, Taj
Depot, Agra. This exercise shall be
completed by the respondent no. 3Assistant Regional Manager, Taj Depot,
Agra within a period of two months from
the date a certified copy of this order is
received by him.
Case law discussed:
(2010) 2 SCC 772; 2012 (1) AWC 354; (2009)
2 SCC 570

## Text

642 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
by the Trial Court dated 26.10.2009 is
hereby confirmed. The writ petition is
accordingly, allowed.

11. After the judgment was
dictated,
learned
counsel
for
the
respondent urged that at least six
months time may be granted to him for
vacating the premises in question. The
learned counsel for the landlord did not
raise any objection to it.

12. As urged by the learned
counsel for the respondent, six month's
time is granted to the respondent to
vacate the premises in dispute provided
the respondent gives his undertaking in
the form of an affidavit before the
concerned Court within one month from
today specifically stating therein that
they
will
handover
the
peaceful
possession of the said accommodation
to
the
petitioner-landlord
without
inducting any third person within a
period of six months from today and
also deposit the entire decretal amount
including the current rent/damages for
use and occupation of the disputed
premises within a period of one month
from today.

13. In the event of default of any
of the aforesaid conditions, the landlord
will be at liberty to proceed to evict the
respondent if necessary by coercive
process with the aid of police force.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 58347 of 2006

Devendra Singh Sisodiya
 ...Petitioner
Versus
State of U.P. Thru' Secretary U.P. and
others

 ...Respondents

Counsel for the Petitioner:
Sri A.S. Diwekar
Sri Meraj Uddin
Sri Pulak Ganguly

Counsel for the Respondent:
C.S.C.
Sri V.K. Singh
Sri N.N. Verma

Constitution
of
India,
Article
226Dismissal on ground of absent from
duty-petitioner suffering form T.B. Duly
supported by medical certificate-could
not appear before inquiry officer-without
fixing another date place and timewithout even examining the authority on
behalf
of
Department
(author
of
chargesheet)-submitted
report
as
petitioner fail to appear in inquiry-hence
nothing to say-appeal also dismissedeven finding of guilt recorder without
disclosing material on bass of inquiry
report submitted on the document the
basis of recording the finding-merely
saying-petitioner did not participate on
submitted any defence-dismissal order
quashed with liberty to pass from order
within period of two month.

Held: Para 13 and 14

As per the law laid down by the Supreme
Court it is incumbent upon the enquiry
officer to have discussed the report of
the Sr. Station Officer, Taj Depot, Agra
and the documents relied upon while
2 All] Devendra Singh Sisodiya V. State of U.P. and others
643
writing the said report. The author of the
document was also required to have
been examined in the enquiry. It is no
defence to the respondents to bring
home a finding of guilt against the
petitioner merely on the ground that the
petitioner did not participate or did not
submit his defence reply to the charge
sheet.

In
view
of
the
above
facts
and
circumstances of the case and the legal
position settled by the Supreme Court,
this writ petition deserves to be allowed.
Accordingly the writ petition is allowed
and the impugned order dated 22.6.2004
and 21.9.2004 are quashed. The enquiry
officer shall proceed to pass fresh order
after taking into consideration the relied
upon document and after discussing the
material on the basis of which such
report has been prepared by Shri Mahesh
Chandra Kamal, Sr. Station Officer, Taj
Depot, Agra. This exercise shall be
completed by the respondent no. 3Assistant Regional Manager, Taj Depot,
Agra within a period of two months from
the date a certified copy of this order is
received by him.
Case law discussed:
(2010) 2 SCC 772; 2012 (1) AWC 354; (2009)
2 SCC 570

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. Supplementary rejoinder affidavit
filed today is taken on record.

2. This writ petition has been filed by
the petitioner seeking quashing of the order
dated 22.6.2004 by which the petitioner was
removed from the post of Conductor and
the Appellate order dated 21.9.2004
rejecting the appeal of the petitioner.

3. The facts of the case, in brief, are
that while working on the post of Conductor
in the UPSRTC, the petitioner was issued a
charge sheet dated 25.2.2003 by the
Assistant Regional Manager, Taj Depot
District Agra wherein it was alleged that the
petitioner had remained absent from duty
for a considerable period of time. It appears
that on 30.3.2003 a fresh charge sheet was
issued to the petitioner by the Regional
Manager, Taj Depot Agra. An enquiry
officer was appointed on 30.9.2003 and the
first date of enquiry was fixed on 10.2.2004
at 11 a.m. It is further the case of the
petitioner that a show cause notice was
issued to him on 29.1.2004 and thereafter
the
services
of
the
petitioner
were
terminated by the order dated 22.6.2004.
Aggrieved the petitioner preferred an
departmental appeal which too was rejected
by the order dated 22.9.2004. In paragraph
8 of the writ petition it is stated that he was
suffering from T.B. and a medical
certificate was also issued by the Chief
Medical
Officer,
Agra
advising
the
petitioner rest from 30.3.2004 to 30.6.2004
and as such he could not appear before the
enquiry officer.

4. When the matter was taken up
earlier, this Court by its order dated
2.12.2011 had directed the petitioner to file
a supplementary affidavit bringing on
record the copy of the enquiry report. By a
further order dated 26.4.2012 this Court had
directed the UPSRTC to supply a copy of
the enquiry report to the learned counsel for
the petitioner. In pursuance of the direction
of this court an affidavit has been filed on
13.5.2012 and a copy of the enquiry report
has been filed as Annexure SCA-I.

5. I have heard Shri Pulak Ganguly,
learned counsel for the petitioner, Shri N.N.
Verma holding brief of Shri V.K. Singh
learned counsel for the respondent nos. 2
and 3 and the learned standing counsel.

6. From a perusal of the enquiry
report, which is at page 6 of the second
644 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
supplementary counter affidavit it will be
seen that the contents of the charges against
the petitioner have been outlined and it has
been stated that the petitioner was absent
from duty on the following dates:

MONTHS
 WORKING DAYS

July, 2002

 13 days

August, 2002
 24 days

September, 2002

 16 days

October, 2002

 12 days

November, 2002

 9 days

December, 2002

 4 days.

7. It is also stated that the enquiry was
fixed for 8.8.2003, 8.9.2003, 23.9.2003,
1.10.2003,
12.5.2003
and
lastly
on
31.12.2003 but the petitioner did not appear
in the enquiry but sent a letter stating that
charge sheet which had been issued to him
earlier, had been lost and therefore a copy of
the charge sheet may be supplied to him.
Accordingly by a letter dated 30.9.2003 a
copy of the charge sheet dated 30.3.2003
was supplied to the petitioner. Recording all
these findings the enquiry officer has
concluded that since the petitioner did not
submit any reply to the charge sheet and
also did not participate in the enquiry,
therefore, he has nothing to say in his
defence and from his conduct it is,
therefore, clear that the charges stand
proved.

8. The Supreme Court in the case of
State of U.P. Vs. Saroj Kumar Sinha
reported in (2010) 2 SCC 772 has held as
follows:

"26. The first inquiry report is vitiated
also on the ground that the inquiry officers
failed to fix any date for the appearance of
the respondent to answer the charges. Rule
7 (x) clearly provides as under:-

"7.(x) Where the charged government
servant does not appear on the date fixed in
the inquiry or at any stage of the proceeding
in spite of the service of the notice on him or
having knowledge of the date, the inquiry
officer shall proceed with the inquiry ex
parte. In such a case the inquiry officer
shall record the statement of witnesses
mentioned in the charge-sheet in absence of
the charged government servant."

27. A bare perusal of the aforesaid
sub-rule shows that when the respondent
had failed to submit the explanation to the
charge sheet it was incumbent upon the
inquiry officer to fix a date for his
appearance in the inquiry. It is only in a
case when the government servant despite
notice of the date fixed failed to appear that
the inquiry officer can proceed with the
inquiry
ex
parte.
Even
in
such
circumstances it is incumbent on the inquiry
officer to record the statement of witnesses
mentioned in the charge-sheet. Since the
government servant is absent, he would
clearly lose the benefit of cross-examination
of the witnesses. But nonetheless in order to
establish the charges the Department is
required to produce the necessary evidence
before the inquiry officer. This is so as to
avoid the charge that the inquiry officer has
acted as a prosecutor as well as a judge.

28. An inquiry officer acting in a
quashi-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
2 All] Devendra Singh Sisodiya V. State of U.P. and others
645
the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved, and could not have been taken into
consideration to conclude that the charges
have been proved against the respondents.

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

9. A Division Bench of this Court in
the case of Mahesh Narain Gupta Vs. State
of U.P. reported in 2012 (1) AWC 354 has
held as follows:

"14. In all 19 charges were mentioned
in the charge-sheet. Although in the chargesheet certain evidence in support of the
charges are shown but perusal of the
Enquiry Officer's report dated 18.3.2008
which has been pressed for awarding
punishment to the petitioner, makes it clear
that
no
evidence
whatsoever
was
collected/recorded by the Enquiry Officer to
get those charges proved. Report of the
Enquiry Officer is of two pages and just
after narrating the facts that letters were
sent but the petitioner did not respond and
filed any evidence it has been concluded
that all the charges against the petitioner
(Charges 1 to 19) are found to be proved."

10. From the above legal position
enunciated by the Supreme Court, it is clear
that the charges are framed against an
employee by the department through a
charge sheet and primary responsibility of
proving the charge/charges against the
government
servant
lies
upon
the
department. If a government servant does
not appear before the enquiry deliberately or
otherwise the charges against him have to
be proved unless the government servant in
so many words admits the charge against
him.

11. In the present case in the charge
sheet the relied upon document was the
report submitted by one Shri Mahesh
Chandra Kamal, Sr. Station Officer, Taj
Depot Agra. In the enquiry this report has
been made the basis of bringing home the
findings of guilt against the petitioner.
However, what was stated in the said report
or what was the material on the basis of
which that report was submitted or the
documents
which
were
taken
into
consideration for writing that report have
not been disclosed in the enquiry at all.
Even the author of the said report namely,
Shri Mahesh Chandra Kamal has not been
examined in the enquiry as witness on
behalf of the department.

12. The Supreme Court in the case of
Roop Singh Negi Vs. Punjab National
Bank reported in (2009) 2 SCC 570 has
held in paragraph 14 as follows:

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be found
to have been proved. The enquiry officer
has a duty to arrive at a finding upon taking
into consideration the materials brought on
record by the parties. The purported
evidence collected during investigation by
the investigating officer against all the
accused by itself could not be treated to be
evidence in the disciplinary proceeding. No
646 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
witness was examined to prove the said
documents. The management witnesses
merely tendered the documents and did not
prove the contents thereof. Reliance, inter
alia, was placed by the enquiry officer on
the FIR which could not have been treated
as evidence."

13. As per the law laid down by the
Supreme Court it is incumbent upon the
enquiry officer to have discussed the report
of the Sr. Station Officer, Taj Depot, Agra
and the documents relied upon while
writing the said report. The author of the
document was also required to have been
examined in the enquiry. It is no defence to
the respondents to bring home a finding of
guilt against the petitioner merely on the
ground that the petitioner did not participate
or did not submit his defence reply to the
charge sheet.

14. In view of the above facts and
circumstances of the case and the legal
position settled by the Supreme Court, this
writ petition deserves to be allowed.
Accordingly the writ petition is allowed and
the impugned order dated 22.6.2004 and
21.9.2004 are quashed. The enquiry officer
shall proceed to pass fresh order after taking
into consideration the relied upon document
and after discussing the material on the
basis of which such report has been
prepared by Shri Mahesh Chandra Kamal,
Sr. Station Officer, Taj Depot, Agra. This
exercise shall be completed by the
respondent
no.
3-Assistant
Regional
Manager, Taj Depot, Agra within a period
of two months from the date a certified
copy of this order is received by him.

15. There shall be no order as to cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 70649 of 2011

Ram Babu Chittoria

 ...Petitioner
Versus
High Court of Judicature at Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri H.N.Singh
Sri Vineet Kumar Singh

Counsel for the Respondents:
Sri Y. Varma
Sri Ashish Misra

Constitution
of
India,
Article
226Dismissal
from
Service-petitioner
working
on
reader-embezzlement
of
certain amount of fine-defence taken
that amount of fine actually in hands of
presiding officer-given on belated stateduring inquiry neither the Presiding
Officer shown as prosecution on defense
witness-plea
regarding
denial
of
opportunity
of
cross-examination-not
available -dismissal order confirmed by
Appellate authority-held-justified.

Held: Para 8

When Sri Amit Kumar Pandey was not
examined for chief, the question of his
cross examination does not arise. It is
true that Evidence Act as such is not
applicable in departmental enquiry but
simultaneously a witness, not adduced
by the department in support of the
charges and is also not called as defence
witness cannot be produced so as to be
cross-examined
by
party
concerned
though he himself has not otherwise said
anything either in support of charge or
against the charge. The request of
petitioner therefore, to call Sri Amit