# Dilip Chandra v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-05
- **Case number:** Writ-A No. 18535 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-chandra-v-state-of-u-p-ors-49038
- **Pages:** 11

## Headnote

Civil Law - U.P. Nagar Mahapalika Sewa
Niyamawali,
1962-Petitioner's
service
dispensed
-major
penalty-without
following
regular disciplinary proceedings-earlier enquiry
dropped-recommendation to start fresh enquiry
by framing charges-dismissal order passed
without fresh enquiry -impugned order quashedPetitioner reinSt.d.

W.P. allowed. (E-9)

List of Cases cited:

A.N.D'Silva Vs U.O.I., AIR 1962 SC 130

## Text

1222 INDIAN LAW REPORTS ALLAHABAD SERIES
cumulatively, the State has failed it's
special citizen. He is therefore found
entitled
to
lump-sum
compensation
assessed at Rs. 5,00,000/-, which may be
paid out to the petitioner by the respondent
State
Government
directly
into
the
following
Savings
Bank
Account
(disclosed by the petitioner), held in the
name of Shivam Gupta bearing A/C No.
919010037208046
(IFSC
Code
UTIB0002426), within a period of three
months from today. In absence of payment
made within that time, that amount would
attract interest @ 8% from today till the
date of actual payment.

32. The amount of compensation has
been awarded to let the petitioner know, the
State may take time to hear & understand
its citizen and his plight but, it is neither
deaf nor heartless as may ever remain
indifferent, forcing him to drag his feet,
almost literally, to this Court to seek
justice. The citizen works at the heart of the
giant being the State is. Unless the heart
beats freely, the being cannot thrive.

33. Respondent no.1 is entrusted to
ensure due compliance of this order. It is
made plain, in this case compensation
awarded is on the State as a whole and not
on its executive wing alone.

34. With the aforesaid observation,
the present petition stands partly allowed.
----------
(2022) 9 ILRA 1222
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 18535 of 2021
Dilip Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish Gupta, Sri Ramesh Rai, Sri R.K.
Ojha (Senir Adv.)

Counsel for the Respondents:
C.S.C., Ms. Arti Raje, Sri Arun Kumar, Sri
Manoj Kumar Singh, Sri Pramod Kumar
Singh, Sri Pratik J. Nagar, Sri Ram Pal
Singh

Civil Law - U.P. Nagar Mahapalika Sewa
Niyamawali,
1962-Petitioner's
service
dispensed
-major
penalty-without
following
regular disciplinary proceedings-earlier enquiry
dropped-recommendation to start fresh enquiry
by framing charges-dismissal order passed
without fresh enquiry -impugned order quashedPetitioner reinSt.d.

W.P. allowed. (E-9)

List of Cases cited:

A.N.D'Silva Vs U.O.I., AIR 1962 SC 130
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri R.K.Ojha, learned Senior
Advocate assisted by Sri Manish Gupta,
learned counsel for the petitioner and Sri
J.Nagar, learned Senior Advocate assisted
by Sri Pratik J. Nagar, learned counsel for
the respondent nos 5,6 and 7 and learned
Standing Counsel for the State respondents.

2. Invoking extra ordinary equitable
jurisdiction of this Court, the petitioner
who is an employee of Jalkal Department,
Nagar Nigam, Prayagraj has assailed the
order dated 5.8.2021 passed by the General
Manager of the Jalkal Department, Nagar
Nigam, Prayagraj, namely, respondent no.
5 on the ground that the order has been
passed dispensing with the services of the
9 All. Dilip Chandra Vs. State of U.P. & Ors.
1223
petitioner which is a major penalty without
holding regular disciplinary proceedings as
prescribed for under the relevant rules and
regulations inasmuch as enquiry report that
has been relied upon by the disciplinary
authority
dated
6.4.2021
was
never
supplied to the petitioner.

3. It is pleaded in the writ petition that
initially petitioner was suspended vide
order dated 22nd October, 2019 by the then
General
Manager
Ratan
Lal,
Jalkal
Department, Nagar Nigam, Prayagraj on
four charges which were quite vague in
nature and the present General Manager
Mr. Harish Chandra Balmiki was appointed
as an enquiry officer. The charge sheet was
served upon the petitioner on 5.11.2019
with four charges without there being any
copy of the complaint annexed with the
chargesheet in support of the charges. The
petitioner submitted a detail reply on
25.11.2019 to the enquiry officer, but
nothing proceeded further in the matter.

4. Sri Ratan Lal, the then General
Manager came to be transferred by the
State Government from Prayagraj to Nagar
Nigam, Meerut vide order dated 29th April,
2020 and Sri Harish Chandra Balmiki who
was enquiry officer in the matter of
departmental enquiry against the petitioner
came to be promoted and given the charge
of General Manger of the Jalkal department
Nagar
Nigam
Prayagraj
(hereinafter
referred to as General Managaer). Mr.
Harish Chandra Balmiki soonafter taking
the charge of General Manager passed an
order dated 2nd May, 2020 cancelling all
the orders of previous General Manager
Ratan Lal and this included letter no. 205
dated 28.4.2020 whereby petitioner was
reinstated in service pending enquiry. Thus,
petitioner was reverted to the position of
suspension. Petitioner wrote a letter to the
present General Manager on 1st July, 2020
and requested that his suspension order
dated 22nd October, 2019 be cancelled and
he may be reinstated in service pending
enquiry. Suddenly on 12th July, 2021
petitioner was served with a show cause
notice with as many as ten charges and
with proposed punishment of dismissal
from service and the petitioner was
required to submit his reply within 15 days.
Petitioner vide letter dated 24th July, 2021
sought further time to submit reply,
however, instead of granting time to enable
petitioner to file reply as is pleaded in the
writ petition, respondent no. 5 passed an
order on 5.8.2021 dismissing the petitioner
from
service
on
the
basis
of
recommendation made by the enquiry
officer in his report dated 6.4.2021. Thus, it
is further pleaded in the writ petition that
entire proceeding was a farce as no
procedure prescribed for was followed,
inasmuch petitioner was never served with
any chargesheet to submit reply and if any
enquiry had been conducted, it had been on
the back of the petitioner.

5. It is submitted that he was never
served with copy of the enquiry report, nor
afforded opportunity of hearing to contest
the matter as sufficient plea has been taken
by the petitioner regarding non compliance
of the procedure prescribed for while
imposing major penalty of dismissal from
service. It is necessary here to go through
the relevant provisions of the U.P. Nagar
Mahapalika
Sewa
Niyamawali,
1962)
(hereinafter referred to as Rules, 1962. Part
III of the Rules, 1962 deal with punishment
and appeals and Rule 27 thereof runs as
under:

"27. Punishment- Subject to the
provisions of section 110 of the Act, the
following penalties may, for good and
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient reasons and as therein after,
provided, be imposed upon the servants of
the Mahapalika by the authority which is
competent to make such appointment under
section 107 of the Act, notwithstanding that
such an appointment in any particular case
may have been made under Section577
(f)(2) of the Act, namely:-

(i) fine in case of servants
belonging to the inferior service only:
Provided that the total amount of the fine
shall not ordinarily exceed half month's
pay of the servant concerned and it shall be
deducted from his pay in instalments not
exceeding one-quarter of this monthly
salary;

(ii) censure;

(iii) withholding of increments
including its stoppage at an efficiency bar;

(iv) recovery from pay of the
whole or part of any pecuniary loss caused
to the Mahapalika by negligence or breach
of orders;

(v) suspension;

(vi) reduction to a lower post or
time-scale, or to lower stage in a time
scale;

(vii) removal from the service of
the Mahapalika which does not disqualify
from future employment.

(viii) dismissal from the service
of
Mahapalika
which
ordinarily
disqualifies from future employment;

Explanation- The discharge-

(a) of a person appointed on
probation during or at the end of the period
of probation; or

(b)
of
a
person
appointed
otherwise than under contract to hold a
temporary appointment on the expiration of
the period of the appointment or at any
time in accordance with the terms of
appointment; or

(c) of a person engaged under
contract in accordance with the terms of
his contract; does not amount to removal
or dismissal within the meaning of this
rule."

 (emphasis added)

6.

Rule
27
(viii)
prescribes
''Dismissal' from service of Mahapalika, a
punishment
that
would
ordinarily
disqualify such an employee from future
employment. Thus it is the maximum
punishment under the Rules, 1962 that can
be inflicted upon an employee, and is,
therefore, a major penalty.

7. Rule 31 lays down procedure for
disciplinary proceedings and Rule 32
provides for conclusion of disciplinary
proceeds drawn against an employee. Both
Rules 31 and 32 are reproduced hereunder:

31. Procedure for disciplinary
proceedings,- (1) No order (other than an
order based on facts which have led to his
conviction on a criminal charge) of
dismissal, removal or reduction in rank
(which includes reduction to a lower post
or time-scale or a lower stage in a time
scale but excludes the reversion to a lower
post of a person- who is officiating in a
higher post) shall be passed on any servant
of the Mahapalika unless he has been
informed in writing of the grounds on
which it is proposed to take action and has
been afforded an adequate opportunity of
defending himself. The grounds on which
it is proposed to take action shall be
reduced in the form of a definite charge or
charges which shall be communicated to
the person charged and which shall be so
clear and precise as to give sufficient
indication to the charged servant of the
facts and circumstance against him. Ae
shall be required with in a reasonable
time,to put in a written statement of his
defence and to state whether he desires to
9 All. Dilip Chandra Vs. State of U.P. & Ors.
1225
be heard in person. If he so desires or if the
authority concerned so directs an oral
enquiry shall be held in respect of such of
the allegations as are not admitted. At that
inquiry such oral evidence will be heard as
the inquiring officer considers necessary.
The person charged shall be entitled to
cross-examine the witnesses, to give
evidence in person and to have such
witness called as he may wish, provided
that he officer conducting the inquiry may
for sufficient reason to be recorded in
writing refuse to call a witness. Neither the
Mahapalika nor the servants of the
Mahapalika shall be entitled to be
represented by a counsel. The proceedings
shall contain a sufficient record of the
evidence and statement of the finding and
the
grounds
thereof.
The
officer
conducting
the
enquiry
may
also
separately from these proceedings make
his own recommendation regarding the
punishment to be imposed on the charged
servant.

(2) This rule shall not apply where
the person concerned has absconded or
where it is for other reasons impracticable to
communicate with him. All or any of the
provisions of the rule may for sufficient
reasons to be recorded in writing be
waived,where there is difficulty in observing
exactly the requirements of the rule and those
requirements can in the opinion of the
inquiring officer be waived without injustice
to be person charged.

(3) This rule shall also not apply
where it is proposed to terminate the
employment of either a temporary servant, or
of a probationer whether during or at the end
of the period of probation. In such cases a
simple notice of termination,which in the case
of temporary servant, must conform to the
condition of his service, will be sufficient.

32 . (1) After an inquiry against
a servant has been completed and after the
punishment authority has arrived at
provisional conclusions in regard to the
penalty to be imposed,the servant charged
shall, if penalty proposed is dismissal,
removal or reduction in rank be supplied
with a copy of the proceedings prepared
under
Rule
31
excluding
the
recommendations, if any in regard to
punishment
made
by
the
officer
conducting the inquiry and asked to show
cause by a particular date, which affords
him reasonable time, why the proposed
penalty should not be imposed on him.

Provided that if for sufficient
reasons the punishing authority disagrees
with any part or whole of the proceeding
prepared under Rule 31, the point or points
of such disagreement, together with a brief
statement of the grounds thereof, shall also
be communicated to the officer or servant
charged along with the copy of the
proceedings under Rule 31.

(2) Every order of dismissal,
removal or reduction in rank shall be in
writing and shall specify the charge or
charges brought, the defence, if any, and
the reasons for the order.

(emphasis added)

8. The order impugned in the writ
petition clearly indicates that General
Manager Mr. Balmiki has impugned
penalty of dismissal from service in
exercise of his power vested under Rule 27
(iii) on the basis of enquiry report dated
06.04.2021 of the enquiry officer Mr.
Mushir Ahmad, the Additional Municipal
Commissioner and of course, after issuing a
show cause notice dated 12.07.2021. Thus
as per the impugned order, there has been
absolute compliance of the procedure
prescribed for under Rule 31 and 32 of the
Rules, 1962 for taking an action of
imposing major penalty of dismissal from
service under Rule 27 (viii) of the Rules,
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
1962. However, since pleading raised in
writ petition has been that no enquiry was
held, no enquiry report was supplied and so
none of the procedures prescribed for
conducting disciplinary proceedings was
followed, this Court summoned the original
records of disciplinary proceedings in
question vide order dated 23.02.2022.

9. I have gone through the entire
original records relating to the proceedings
that have resulted in passing of the order by
respondent no. 5 dispensing with services
of the petitioner and I find that in the matter
of enquiry pursuant to the suspension order
and the chargesheet served upon the
petitioner in the year 2019 the then enquiry
officer Harish Chandra Balmiki who was
later on promoted as General Manager, was
removed as enquiry officer and in his place
one Sri Santosh Kumar Dwivedi, Assistant
Engineer, Zone 1 Jalkal Department Nagar
Nigam Prayagraj was appointed as an
enquiry officer vide letter no. 219 dated
29.04.2020. This order with letter number
was cancelled by the newly appointed
General Manager Harish Chandra Balmiki
on 02.05.2020. There is of course, one
letter
addressed
to
Municipal
Commissioner dated 05.05.2020 written by
Accounts Officer, Sujit Kumar which was
marked
to
the
Additional
Municipal
Commissioner Mr. Mushir Ahmad by the
Mayor, Prayagraj to conduct enquiry and
submit report.

10. Mr. Mushir Ahmad writes to Mr.
Harish
Chandra
Balmiki
the
then
officiating General Manager asking him to
send the details of enquiry till that time
conducted by Mr. Balmiki vide his letter
dated 05.05.2020. Mr. Balmiki replied to
the letter vide his letter dated 12.05.2020
that original file was available in the office
of Nagar Nigam and so he was unable to
submit report. Municipal Commissioner
Mr.
Ravi
Ranjan,
the
Municipal
Commissioner also wrote to General
Manager, Jalkal Department, Mr. Balmiki
on 11.06.2020 to make available entire
evidence/documents without which enquiry
was not being proceeded with. This time
Mr. Balmiki wrote to the enquiry officer
Mr Mushir Ahmad a detailed letter on
18.062020 that entire records had been
made available to him vide office letter no.
D/346/Jalkal Vibhag/20 dated 15.05.2020
and that letters written for recording
evidence and statement of witnesses were
available on record, but the enquiry officer
wrote him back that in connection with
chargehseet dated 05.11.2019 issued to the
delinquent employee, no evidence was
available on record. He wrote that there
was some reference to the police report and
drawing of some proceedings against the
delinquent employee but in connection with
the chargesheet dated 05.11.2019 the
evidence be made available so that enquiry
might be concluded . Vide letter dated
21.07.2021. Mr. Balmiki reiterated that
evidence were available in original in the
records in the office of Nagar Nigam and
there was no further evidence and so
accordingly enquiry be concluded. Enquiry
Officer gave last opportunity to Mr.
Balmiki
to
make
available
requisite
documents/ evidence and to cooperate in
the
enquiry
vide
his
letter
dated
23.07.2020. Mr. Balmiki, the General
Manager this time, writes back to enquiry
officer on 30.07.2020 reiterating his
previous stand and asks the enquiry officer
to conclude enquiry as per the charges
contained in the chargesheet. Having found
no records available, the enquiry officer
Mr. Mushir Ahmad virtually dropped the
enquiry proceedings on the ground that in
connection with the charges, no evidence
was got recorded before him and so the
9 All. Dilip Chandra Vs. State of U.P. & Ors.
1227
enquiry proceedings could not be continued
for want of evidence. This letter addressed
to
Municipal
Commissioner
dated
15.09.2020 is reproduced hereunder:

"नगर आयुक्त महोदय,

आपसे वाताष हुई। महाप्रबन्धक-िलकल िारा
अब तक िलकल सवभाग के सनलस्म्बत कमषचारीगण श्री
सवनोद कुमार पर्टेल, खलासी एंव श्री सदलीप चन्द्र, खलासी
के िांच प्रकरण में आरोसपत आरोपों के सम्बन्ध में कोई भी
साक्ष् अधोहिाक्षरी को उपलब्ध नहीं कराया गया है,
अतएव साक्ष् के अभाव में दीघषकालीन अवसध तक
अनुशाससनक कायषवाही गसतमान रखने का कोई औसचत्य
नहीं है। तदनुसार महाप्रबन्धक-िलकल को सनदेसशत
करना चाहें।

अपर नगर आयुक्त।"

11. However, it seems when above
letter was not replied to by General
Manager, the Enquiry Officer decided to
drop enquiry proceedings on the ground
that no one was giving evidence against the
delinquent employee who was in jail
pursuant to police report dated 25.12.2020.
This report of enquiry officer is titled as
''Enquiry Report' and seems to have been
taken as one prepared under Rule 31(1) of
the Rules, 1962. In order to appreciate this
enquiry report it is reproduced hereunder:

"tkap vk[;k

मेरे िारा श्री हररिन्द्र बाल्मीसक, महाप्रबन्धक
िलकल सवभाग प्रयागराि की आख्या सदनांक -
05.03.2021 का अवलोकन सकया गया। आख्या से स्पष्ट है
सक श्री सदलीप चन्द्र भारतीया, खलासी िारा सदनांक -
25.12.2020 को महाप्रबन्धक श्री हररिन्द्र बास्ल्मकी पर
िानलेवा हमला सकया गया सिसकी प्रिम सूचना ररपोर्टष,
िाना खुल्दाबाद प्रयागराि में दिष कराई गयी एंव पुसलस
सववेचना के उपरान्त कानूनी कायषवाही के तहत अपराधी
कमषचारी श्री सदलीप चन्द्र भारतीया वतषमान में िेल मे
सनरूि है। कमषचारी का यह अपरासधक कृत्य कमषचारी
आचरण सनयमावली के सवपरीत व अपने असधकारी के प्रसत
घोर अनुशासनहीनता व समसकण्डेक्ट है।

पूवष में भी श्री सदलीप चन्द्र भारतीय, खलासी
िारा अपने कमषचारी सासियों के साि िलकल सवभाग
मुख्यालय खुशरूबाग में असधकररयों व कमषचाररयों के बीच
भय व आतंक फैलाकर िलकल सवभाग के कायों में
व्यवधान उत्पन्न करने के सलए आरोसपत रहे हैं। श्री सदलीप
चन्द्र भारतीया खलासी इतने दबंग व प्रभावशाली अपराधी
हैं सक इनके सवरूि कोई भी असधकारी व कमषचारी
साक्ष्/गवाही देने की सहित नहीं कर पाता है सिसका
प्रमाण यह है सक िलकल सवभाग के कायाषलय पत्र संख्या
िी०
1291/
म०प्र०/
ि०क०सव०/19-20
कदिांि
05/11/2019 िे द्वारा प वण में आर पी िमणचारी ि
आर प-पत्र कदया र्या था कजसिे उत्तर में अपरािी
िमणचारी िे जलिल कवभार् िे अकभयन्तार्र् ि ही
प्रत्यक्षदशी बिािर घटिा िी जाििारी कलए जािे िा
अिुर ि
किया
कजसिे
िम
में
जांच
अकििरी/अि हस्ताक्षरी द्वारा अकभयन्तार्र् से ब्याि
कलया र्या किन्तु अकभयन्तार्र् उक्त िमणचारी िे भय
व आतंि से इतिे ज्यादा प्रभाकवत थे कि वे उसिे
समक्ष घटिा से ही मुिर र्ये।

इस प्रकार आरोपी कमषचारी के किन/उत्तर
पर मौस्खक सुनवाई भी की गई। तद्नुसार श्री सदलीप चन्द्र
भारतीया खलासी उदण्ड, अनुशासनहीन व अपरासधक
प्रवृसत्त का कमषचारी है। कमषचारी की सत्यसनष्ठा संसदग्ध है।
आये सदन िलकल सवभाग मेंंं भय एंव आतंक का माहौल
पैदा करने का आदी है। िमणचारी िी अपराकिि प्रवृकत्त
िे िारर् व्यवहाररि जांच किया जािा संम्भव िहीं है।
आख्या प्रेकर्त है।

(मुशीर अहमद)

अपर नगर आयुक्त/ िांचअसधकारी "

(emphasis added)

12. Upon perusal of the above, I find
that the recommendations made by Mushir
Ahmad to drop the enquiry on 06.04.2021
neither amounts to a formal enquiry report
itself worth its name as such, nor even on
the basis of any such enquiry report a
disciplinary authority could have proceeded
to impose order of punishment in the nature
of major penalty.

13. The same day while the alleged
enquiry report was submitted by Additional
Municipal Commissioner Mushir Ahmad
he made yet another recommendation on
06.04.2021,
which
is
reproduced
hereunder:

" नगर आयुक्त महोदय,
1228 INDIAN LAW REPORTS ALLAHABAD SERIES

कृपया गत् पृष्ठ संख्या-8 पर श्री हररिन्द्र
बाल्मीसक, महाप्रबन्धक िलकल-प्रयागराि की आख्या
सदनांक-05.03.2021 पर अपने आदेश सदनांक-09.03.2021
का अवलोकन करने का कष्ट करें। मेरे िारा महाप्रबन्धक-
िलकल सवभाग की आख्या का अवलोकन सकया गया,
सिससे स्पष्ट है सक श्री सदलीप चन्द्र भारतीय, खलासी व
अन्य सहस्टरीशीर्टर अपरासधयों िारा सदनांक- 25.12.2020
को श्री हररिन्द्र बाल्मीसक, महाप्रबन्धक-िलकल पर
िानलेवा हमला सकया गया। इस सम्बन्ध में पुसलस सवभाग
िाना खुल्दाबाद में प्रिम सूचना ररपोर्टष सं0 635/2020 दिष
करायी गयी है। श्री सदलीप चन्द्र भारतीय (खलासी) िलकल
सवभाग का यह आपरासधक कृत्य कमषचारी आचरण
सनयमावली के सवपरीत है। इस प्रकार कमषचारी िारा अपने
उच्चासधकारी
के
सवरुि
घोर
अनुशासनहीनता
व
समसकन्डक (कदाचार) सकया गया है। द र्ी िमणचारी िे
कवरुद्ध अबति ि ई अिुशासकिि िायणवाही र्कित
िहीं िी र्यी है और ि ही आर प पत्र प्रस्तुत किया र्या
है।

महाप्रबन्धि-जलिल
कवभार्
िे
िमणचाररय ं िे कियुखक्त प्राकििारी व दण्डाकििारी है
कियुखक्त प्राकििारी/दण्डाकििारी ि स्वतः संज्ञाि
लेिर मामले में िायणवाही िी जािी चाकहए।

अतः महाप्रबन्धि जलिल कवभार् ि
किदेश देिा चाहे कि वे मामले/घटिा िे सम्बन्ध में द र्ी
िमणचारी श्री कदलीप चन्द्र भारतीय (िलासी) िे कवरुद्ध
कियमािुसार अिुशासकिि िायणवाही तथा आर प-पत्र
र्कित िर िायणवाही िरें।

 मुशीर अहमद)

 vij uxj vk;qDr a A"

"(emphasis added)

14. The above letter contains
recommendation to the effect that proper
disciplinary proceedings be drawn against
Dilip Chandra, namely the petitioner by
formally framing charges. Notings upn the
above
recommendation
show
that
Secretary,
Nagar
Nigam,
made
an
endorsement for initiating disciplinary
proceedings against suspended employees
not naming the petitioner at all. This
recommendation
of
the
Municipal
Commissioner dated 06.04.2021 further
carries an endorsement of an officer
addressed
to
Secretary,
to
initiate
disciplinary
proceedings
as
per
recommendation. So I do not find there to
be any enquiry report available on record to
enable General Manager to pass order of
dismissal from service. There being only
report dropping enquiry proceedings and a
letter of recommendation by Mushir
Ahmad,
Additional
Municipal
Commissioner
to
initiate
disciplinary
proceedings by framing charges and
thereby issuing chargesheet, such earlier
enquiry report or recommendation cannot
be said to be a recommendation of enquiry
officer to dismiss the petitioner from
service. How the General Manager Mr.
Balmiki treated the enquiry report dropping
the enquiry and recommendations made for
framing charges as an enquiry report is
questionable. Surprisingly he, instead of
instituting enquiry afresh, has proceeded to
take action of imposing punishment as
disciplinary authority. Records do not
reveal any disciplinary enquiry being
instituted
upon
recommendation
of
Additional Municipal Commissioner dated
06.04.2021. The court also fails to
understand as to why enquiry officer , Mr.
Mushir Ahmad, if in his wisdom had
rightly dropped enquiry for want of
evidence and yet made recommendation for
disciplinary action. Here report should have
been taken to mean for instituting a proper
formal enquiry as contemplated under Rule
31 of the Rules, 1860. An enquiry officer
can only hold a delinquent employee guilty
of the charges by conducting a formal
enquiry as a consequence thereof and then
additionally he can recommend for a
punishment as per rules but without
conducting a formal enquiry showing his
inability to hold enquiry, he could not have
made recommendations for an action for
inflicting punishment upon the delinquent
employee. Here I may refer the case of
A.N.D'Silva v. Union of India, AIR 1962
SC 130, wherein it was held : "In the
9 All. Dilip Chandra Vs. State of U.P. & Ors.
1229
communication addressed by the Enquiry
Officer the punishment proposed to be
imposed upon the appellant if he was found
guilty of the charges could not properly be
set
out.
The
question
of
imposing
punishment can only arise after enquiry is
made and the report of the Enquiry Officer
is received. It is for the punishing authority
to propose the punishment and not for the
enquiry authority."

15. Thus, it is clear that no enquiry as
such was ever ordered against the petitioner
except the one that was instituted pursuant
to the chargesheet dated 5.11.2019. The
order impugned does state that petitioner
was suspended on 22nd October, 2019 and
in the enquriy conducted in the matter
petitioner was held guilty but no such
enquiry report is traceable, instead there is
a report of enquiry officer dropping the
enquiry dated 15.09.2020 and then a report
dated 06.04.2021 showing his inability to
hold enquiry.

16. It further transpires from the
record that there has been some issue
between earlier General Manager and the
present one and the employees have been
made to be victimized because of the
internal politics. It can only be termed as
unfortunate that order of dismissal from
service has come to be passed on serious
charges without holding any enquiry and
referring to such enquiry report, which by
no stretch of imagination can be treated as
formal enquiry report within the meaning
of Rule 31 (1) of the Rules, 1962.

17. Still further, though very
unfortunate but the records reveal that
while an officer was appointed as an
enquiry officer in the matter of enquiry
pursuant to the chargesheet issued to the
petitioner, such officer did not initiate any
step to ensure that disciplinary enquiry
instituted is brought to its logical end and
surprisingly no sooner did he acquired the
position
of
disciplinary
authority
as
General Manager, he proceeded to pass
order against the petitioner. First enquiry
officer appointed was Mr. Harish chandra
Balimiki and as he did not conclude the
enquiry, the then General Manager Ratan
Lal proceeded to reinstate the petitioner
vide letter no. 205 dated 28.04.2020 and
appointed
Santosh
Kumar
Dwivedi,
Assistant Engineer, Zone-I to conclude
enquiry within 15 days and the moment
enquiry
officer
Mr.
Harish
Chandra
Balimiki
got
promoted
as
General
Manager, he cancelled the letter no. 205
reverting the petitioner to the stage of
suspension and also cancelled letter no. 219
dated 29.04.2020 whereby Sri Santosh
Kumar Dwivedi, Assistant Engineer, ZoneI was appointed as an enquiry officer.
Similarly again while Additional Municipal
Commissioner Mr. Mushir Ahmad was
appointed as an enquiry officer, he showed
his inability to proceed with enquiry as Mr.
Harish Chandra Balimiki did not supply the
requisite papers as has come to be recorded
in the order of the then Municipal
Commissioner dated 11th June, 2020
directing the General Manager to supply
the papers and while for non supply of
papers,
the
enquiry
officer
virtually
proceeded to drop the enquiry vide his
letter dated 15.05.2020 and later on even
concluded that enquiry could not be held
vide report dated 06.04.2021 and yet at the
same time accused the petitioner as
responsible for the same. How the enquiry
officer who earlier held General Manager
responsible for not producing documentary
evidence to proceed with enquiry suddenly
turned the table to petitioner''s side to
demonstrate that petitioner was responsible
for insufficient evidence and so action be
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
taken against him. The records do not
disclose that enquiry officer fixed any date
to hold enquiry. No records of formal
enquiry proceedings are available at all
except
internal
departmental
communications
mostly
between
the
enquiry officer and the General Manager. It
is this report dated 06.04.2021 that became
a tool in the hands of General Manager to
pass the order impugned. It is very
unfortunate that officers of the level of
Additional Municipal Commissioner of a
Municipal Corporation like Prayagraj and
General Manager of the Jalkal department
of Nagar Nigam are playing with law and
rules to mould it in the manner it suits
them. In my considered view meeting the
norms of Natural justice in administrative
action is sine qua non. Public servants/
public officials while exercising power/
authority must ensure fairness in action.
Their act and conduct must pass the test of
Article
14
of
the
Constitution
that
envisages fairness and not arbitrariness in
action by public authorities. I must quote
here what Professor Wade and Professor
Christopher discuss about natural justice
in administrative law relying upon certain
authorities, in their celebrated treatise
Administrative Law "In its broadest sense
natural justice may mean simply 'the
natural sense of what is right and wrong,
and even in its technical sense it is now
often equated with 'fairness'

But in administrative law natural
justice is a well-defined concept which
comprises two fundamental rules of fair
procedure: that a man may not be a judge
in his own cause; and that a man's defence
must always be fairly heard. In courts of
law and in statutory tribunals it can be
taken for granted that these rules must be
observed. But so universal are they, so
'natural', that they are not cofined to
judicial power. They apply equally to
administrative power, and sometimes also
to powers created by contract. Natural
justice
is
one
of
the
most
active
departments of administrative law.

There are both broad and narrow
aspects to consider. The narrow aspect is
that the rules of natural justice are merely
a branch of the principle of ultra vires.
Violation of natural justice is then to be
classified as one of the varieties of wrong
procedure, or abuse of power, which
transgress the implied conditions which
Parliament is presumed to have intended.
Just as a power to act ' as he thinks fit'
does not allow a public authority to act
unreasonably or in bad faith, so it does
not allow disregard of the elementary
doctrines of fair procedure. As Lord
Selborne once said.

There would be no decision
within the meaning of the statute if there
were anything of that sort done contrary to
the essence of justice."

(Administrative law by Professor
Wade and Professor Christopher, 10th
edition, page No. 372)

(emphasis added)

18. Applying the above principles to
the facts of this case, I find that in the
present case no formal enquiry was held, at
all as per the procedure prescribed under
Rule 31 of the Rules, 1962. Rule 31(1)
prescribes preparation of chargesheet with
definite charges, person charged shall be
given a reasonable time to put in his written
statement of his defence, if hearing is
pressed then oral enquiry, recording of oral
evidence, opportunity to cross examine the
departmental witness if charged employee
so desires. Enquiry proceedings shall
contain record of evidence and statement of
findings and the grounds thereof. Rule 32
provides if punishment to be awarded is in
9 All. Dilip Chandra Vs. State of U.P. & Ors.
1231
the nature of dismissal, removal or
reduction in rank, then servant charged
shall be provided with the proceedings
prepared under Rule 31 giving him
reasonable time to submit reply. The
disciplinary
authority,
the
General
Manager, though in this case issued a show
cause notice to the petitioner on 12.07.2021
but it neither refers to the charges that were
in the chargesheet nor, accompanies the
alleged enquiry report dated 06.04.2021.
The show cause notice contains new set of
charges and explanation was invited in
respect thereof which should have been
meant
for
initiating
a
disciplinary
proceedings afresh and not for imposing
major penalty.

19. In view of the above, the act and
conduct of the respondents and the
procedure followed by them in utter
defiance to the rules framed for such
purposes, cannot be countenanced under
any circumstances.

20. Looking to the facts and
circumstances of this case, it seems
difficult to expect justice to the employees
of Nagar Nigam at the end of these
authorities. They need to mend their ways
of working so that congenial atmosphere is
created in the local body concerned which
is constituted for public service.

21. Sri J.Nagar, learned Senior
Advocate assisted by Sri Pratik J. Nagar
appearing on behalf of respondent no. 5,6
and 7 as well as learned Standing Counsel
appearing for State respondent nos. 1 and 2
could not place any rule or regulation under
which such procedure to dismiss an
employee from service has been prescribed.

22. From the perusal of the original
records and the discussions made above,
the Court comes to an inevitable conclusion
that earlier enquiry pursuant to the
chargesheet
dated
25.11.2019
stood
dropped on 06.04.2021 and there is nothing
on record to demonstrate that the enquiry
officer's decision has not able to hold
enquiry dated 06.04.2020 in the form of
enquiry
report,
was
ever
set
aside,
inasmuch as Mushir Ahmad has only
recommended for initiation of fresh enquiry
by
framing
charges
and
issuing
chargesheet, and in so far as the order of
the punishment of dismissal of petitioner
from service is concerned, it is without any
enquiry being held at all. The show cause
notice based upon certain charges issued
afresh on 12.07.2021 can only be meant for
instituting a disciplinary proceeding against
the petitioner and merely on that basis,
even if it remained unresponded, major
penalty of dismissal could not have been
inflicted. The disciplinary authority issued
the said show cause notice not on the basis
of any disagreement to the enquiry report,
containing points of disagreement together
with the brief statement of grounds thereof
as contemplated under the proviso to rule
32(1) of the Rules, 1960.

23. Further the show cause notice was
served upon the petitioner while he was in
jail and so he sought time to submit reply
after he would be released vide letter dated
24.07.2021. This letter of the petitioner is
not
on
record.
Even
under
these
circumstances
institution
of
a
fresh
disciplinary enquiry upon the charges set
out in the show cause notice was a must
under Rule 31(1) of the Rules, 1962.

24. It is not disputed that petitioner is
a permanent and confirmed employee and
there is a procedure prescribed for to
institute disciplinary proceedings, if there
are charges against such an employee and,
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, in the absence of any chargesheet
and the enquiry report, procedure followed
to impose major penalty of dismissal from
service cannot be approved of under any
circumstances. Thus conclusion drawn by
Mr. Mushir Ahmad in his report dated
06.04.2021 does not amount to a finding as
an
outcome
of
any
formal
enquiry
proceeding and cannot be treated an
enquiry report as such and so resultant
action by the disciplinary authority under
the order impugned in the matter is
unsustainable and deserves to be quashed.

25. In view of the above, writ petition
succeeds and is allowed and the order of
dismissal from service dated 05.08.2021 is
hereby quashed.

26. As I have already observed that
records do reveal that nothing proceeded
further in the matter of enquiry pursuant to
the chargesheet dated 05.11.2019, and that
enquiry proceeding stood actually dropped
vide
enquiry
officer's
report
dated
06.04.2021 (supra), petitioner cannot be
retained under suspension and, therefore,
order of suspension of the petitioner dated
22.10.2019 is also set aside.

27. Petitioner shall be reinstated in
service with all consequential benefits.
Liberty rests with the respondents to
proceed afresh, if they so desire, strictly in
accordance with law.
----------
(2022) 9 ILRA 1232
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-C No. 17250 of 2022

Pallavi Singh Patel ...Petitioner
Versus
E.C.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Saroj Kumar Yadav, Sri Anil Kishore
Sharma (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ashutosh Mishra, Sri Rakesh
Pande (Sr. Advocate)

Civil Law- The Constitution of India,1950-
Article 324-The Representation of Peoples
Act, 1951- Sections 33A & 125A- Clause
5(v) of The circular dated 24th August,
2021 issued by the Election Commission of
India providing procedure to deal with the
complaint of violation of Section 33-A -
Post election Inquiry into complaints by
the Returning Officer/the Sub-Divisional
Magistrate- Any complaint of false
affidavit received by any other officer
after the nomination exercise is over, is
required to be referred to the Chief
Electoral Officer, if such a complaint is
supported by some document/evidence.
The Chief Electoral Officer further shall be
required to make a scrutiny of the
supporting evidence/documents and shall
ask for the affidavit of the complainant
before forwarding the complaint to the
Election Commission. Clause 5(v) of the
circular dated 24th August, 2021 (which is
statutory in character), clearly provides
that such forwarded complaints shall be
dealt by the Election Commission on caseto-case basis and the Commission may
seek comments of the appropriate officer
while dealing with the complaint.

The circular dated 24th August, 2021 issued by
the Election Commission of India is statutory in
nature and provides the procedure to deal with
the complaint of violation of Section 33-A and
mandates that the Chief Electoral Officer shall
forward the complaints received after the
nomination process to the Election Commission.