# Dinesh Chand Sharma v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 589
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 10601 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-chand-sharma-v-state-of-u-p-ors-49377
- **Pages:** 10

## Headnote

Service Law - Disciplinary Proceedings -
Natural Justice - Dismissal Order - U.P.
Primary Agricultural Cooperative Credit
Societies
Regulations,
2020
-
Requirement of Fair Enquiry - Burden of
Proof on Employer - Ex Parte Proceedings
The petitioner, a peon promoted to accountant
in Kisan Sewa Sahkari Samiti Ltd., challenged
his dismissal from service vide order dated
18.05.2023, issued by the Committee of
Management, alleging violation of natural justice
and procedural irregularities. The petitioner was
dismissed following disciplinary proceedings
initiated on charges including unauthorized sale
of manure and eucalyptus trees. The dismissal
order was preceded by an earlier dismissal
(31.12.2022), which was set aside by the
Appellate Authority on 13.03.2023 for noncompliance with natural justice, directing fresh
proceedings. The petitioner contended that no
proper enquiry was conducted, no date, time, or
place for enquiry was fixed, no enquiry report
was prepared, and no show cause notice was
issued before the impugned dismissal. The
respondents failed to deny these averments or
produce an enquiry report. The Court found that
the disciplinary proceedings lacked a fair
procedure, as no oral or documentary evidence
was formally led to prove the charges, even
assuming the petitioner's ex parte absence.
Relying on Roop Singh Negi Vs Punjab National
Bank (2009) 2 SCC 570, St. of Uttar Pradesh Vs
Saroj Kumar Sinha (2010) 2 SCC 772, and Smt.
Karuna Jaiswal Vs St. of U.P. 2018 (9) ADJ 107
(DB), the Court held that the employer must
prove charges through evidence in a quasijudicial enquiry, regardless of the delinquent's
participation. The dismissal order was quashed
for violating principles of natural justice. The
petitioner was ordered to be reinstatement with
salary from the date of judgment, with liberty to
the respondents to proceed afresh from the
charge-sheet stage in accordance with law. Back
wages were made subject to the outcome of
any fresh proceedings or, in their absence,
limited to 50% with continuity of service and
seniority.

Held: The impugned dismissal order dated
18.05.2023 is quashed for failure to adhere to
principles of natural justice and fair procedure in
disciplinary proceedings. The respondents are
directed to reinSt. the petitioner forthwith and
pay his salary from the date of judgment. The
respondents may proceed afresh from the
charge-sheet stage, strictly in accordance with
law. Back wages to be determined based on the
outcome of fresh proceedings, if initiated, or
limited to 50% with continuity of service and
590 INDIAN LAW REPORTS ALLAHABAD SERIES
seniority if no further action is taken. (Paras 2333)

Case Law Discussed:

## Text

11 All. Dinesh Chand Sharma Vs. State of U.P. & Ors.
589
petitioner from the stage of the chargesheet, strictly in accordance with law and
the guidance in this judgment. It shall also
be open to the respondents to pass fresh
orders, again in accordance with law. The
entitlement of the petitioner to receive his
emoluments attached to the post of an
Assistant Engineer for the period between
the date of the impugned order and this
judgment shall be decided, subject to event
in proceedings, if elected to be taken
afresh. In the event, the respondents do not
propose to take fresh proceedings, the
petitioner would be entitled to all his
emoluments attached to the post of
Assistant Engineer between the date of the
order impugned and this judgment.

40. There shall be no order as to costs.
----------
(2023) 11 ILRA 589
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10601 of 2023

Dinesh Chand Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sujeet Kumar Rai, Sri Anil Kumar Rai

Counsel for the Respondents:
C.S.C., Sri Brij Raj Verma, Sri Rajesh Kumar
Tiwari

Service Law - Disciplinary Proceedings -
Natural Justice - Dismissal Order - U.P.
Primary Agricultural Cooperative Credit
Societies
Regulations,
2020
-
Requirement of Fair Enquiry - Burden of
Proof on Employer - Ex Parte Proceedings
The petitioner, a peon promoted to accountant
in Kisan Sewa Sahkari Samiti Ltd., challenged
his dismissal from service vide order dated
18.05.2023, issued by the Committee of
Management, alleging violation of natural justice
and procedural irregularities. The petitioner was
dismissed following disciplinary proceedings
initiated on charges including unauthorized sale
of manure and eucalyptus trees. The dismissal
order was preceded by an earlier dismissal
(31.12.2022), which was set aside by the
Appellate Authority on 13.03.2023 for noncompliance with natural justice, directing fresh
proceedings. The petitioner contended that no
proper enquiry was conducted, no date, time, or
place for enquiry was fixed, no enquiry report
was prepared, and no show cause notice was
issued before the impugned dismissal. The
respondents failed to deny these averments or
produce an enquiry report. The Court found that
the disciplinary proceedings lacked a fair
procedure, as no oral or documentary evidence
was formally led to prove the charges, even
assuming the petitioner's ex parte absence.
Relying on Roop Singh Negi Vs Punjab National
Bank (2009) 2 SCC 570, St. of Uttar Pradesh Vs
Saroj Kumar Sinha (2010) 2 SCC 772, and Smt.
Karuna Jaiswal Vs St. of U.P. 2018 (9) ADJ 107
(DB), the Court held that the employer must
prove charges through evidence in a quasijudicial enquiry, regardless of the delinquent's
participation. The dismissal order was quashed
for violating principles of natural justice. The
petitioner was ordered to be reinstatement with
salary from the date of judgment, with liberty to
the respondents to proceed afresh from the
charge-sheet stage in accordance with law. Back
wages were made subject to the outcome of
any fresh proceedings or, in their absence,
limited to 50% with continuity of service and
seniority.

Held: The impugned dismissal order dated
18.05.2023 is quashed for failure to adhere to
principles of natural justice and fair procedure in
disciplinary proceedings. The respondents are
directed to reinSt. the petitioner forthwith and
pay his salary from the date of judgment. The
respondents may proceed afresh from the
charge-sheet stage, strictly in accordance with
law. Back wages to be determined based on the
outcome of fresh proceedings, if initiated, or
limited to 50% with continuity of service and
590 INDIAN LAW REPORTS ALLAHABAD SERIES
seniority if no further action is taken. (Paras 2333)

Case Law Discussed:

1. Roop Singh Negi Vs Punjab National Bank
(2009) 2 SCC 570

2. St. of Uttar Pradesh Vs Saroj Kumar Sinha
(2010) 2 SCC 772

3. Smt. Karuna Jaiswal Vs St. of U.P. 2018 (9)
ADJ 107 (DB)

4. Harish Kumar Sharma Vs St. of U.P. Writ-A
No. 13425 of 2022 (Allahabad High Court,
decided on 07.09.2022)

5. Yadram Vs St. of U.P. Writ-A No. 20683 of
2022 (Allahabad High Court, decided on
12.12.2022)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against
the
order
dated
18.05.2023,
notifying a decision of the Board of
Directors/ Committee of Management,
Kisan
Sewa
Sahkari
Samiti
Ltd.,
Chaudhera,
Block
Pahasu,
District
Bulandshahr, signed by the Chairman and
the Secretary of the said society, resolving
to dismiss the petitioner from service.

2. The Kisan Sewa Sahkari Samiti
Ltd., Chaudhera, Block Pahasu, District
Bulandshahr (for short, 'the Society') is a
registered
Primary
Agricultural
Cooperative Society, registered under the
U.P. Cooperative Societies Act, 1965 (for
short, 'the Act of 1965'). The service
conditions
of
employees
of
Primary
Agricultural Cooperative Credit Societies
are governed by regulations, known as U.P.
Primary Agricultural Cooperative Credit
Socities Regulations, 2020, notified on
31.07.2020. These shall hereinafter be
called, 'the Regulations of 2020'.

3. The petitioner was a peon in the
employ of the Society. According to a
resolution of the Board of Directors of the
Society, adopted in their meeting dated
22.10.2022, he was promoted to the post of
an accountant. The petitioner thinks that he
became the victim of a dispute between a
Cadre Secretary, Yadram and another
Banwari Lal Sharma, who was given
additional charge of the Society vide order
dated 22.11.2022 passed by the Member
Secretary,
District
Administrative
Committee Cooperatives, Bulandshahr.

4. Yadram, the Cadre Secretary
instituted Writ-A No. 20683 of 2022,
questioning the
additional
charge of
Secretary of the Society being given to
Banwari Lal Sharma. The writ petition
aforesaid was disposed of, substantially
allowed, vide order dated 12.12.2022, in
terms of the following orders:

"It has been submitted that Sri
Banwari Lal Sharma belongs to the same
Block i.e. Development Block Pahasu and
this Court in its judgment and order dated
07.09.2022 passed in Writ A No.13425 of
2022 (Harish Kumar Sharma Vs. State of
U.P. and 3 others) placing reliance upon the
Chapter VII Regulation 36(c) of the Uttar
Pradesh Primary Agricultural Cooperative
Credit Societies Centralized Service Rules,
1978, had observed that no member shall
be posted in the Society of the block where
he permanently resides. It has been
submitted that the order dated 22.11.2022
has been passed without noticing the
aforesaid judgment.

Sri M.N. Mishra, learned counsel, on
the basis of the instructions, says that
Banwari Lal Sharma has only been given
additional charge. He has not been made
Cadre Secretary of the Society of the Block
of which he is original resident.
11 All. Dinesh Chand Sharma Vs. State of U.P. & Ors.
591

This Court is of the opinion that
additional charge also cannot be given to
Banwari Lal Sharma. The order dated
22.11.2022 is quashed with liberty to the
respondent no.3 to pass a fresh order within
a period of three weeks from today.

In the meantime, the petitioner has
already been suspended by order dated
02.12.2022, he shall not be allowed to
function but some other regularly appointed
Cadre Secretary shall be given charge of
the Society in question."

5. The petitioner thinks that Banwari
Lal Sharma came to believe that Yadram,
the Cadre Secretary, who instituted Writ-A
No. 20683 of 2022 against the additional
charge of the Society that Banwari Lal
Sharma held, was set up by the petitioner.
The petitioner says that on this account
Banwari Lal Sharma, who is till date
discharging duties of the Secretary in
additional charge of the Society, got
disciplinary proceedings instituted against
the petitioner mala fide, and had him
placed under suspension pending enquiry
vide order dated 09.12.2022. A chargesheet dated 12.12.2022 was issued to the
petitioner carrying five charges, to which
the petitioner filed a reply, which is on
record as Annexure No.6 to the writ
petition.

6. It is the petitioner's case that after
submission of his reply to the chargesheet,
no proceedings were taken. It is averred in
paragraph No.13 that it is incorrectly
mentioned that vide an order dated
21.12.2022, a last opportunity was given to
the petitioner to give a reply together with
evidence. Rather, it is asserted in paragraph
No.13 of the writ petition that after the
submission of his reply to the chargesheet,
the petitioner was dismissed from service
vide order dated 31.12.2022.

7. The petitioner challenged the said
order dated 31.12.2022 by taking resort to
the remedy of a departmental appeal under
Regulation 18 of the Regulations of 2020.
The Appellate Authority, vide order dated
13.03.2023, set aside the order of dismissal
from service, passed against the petitioner
by the Committee of Management of the
Society. The Committee of Management
were directed to pass fresh orders in
accordance
with
law,
after
giving
opportunity to the petitioner and adhering
to the rules of natural justice.

8. It is the petitioner's case that on
16.03.2023, he submitted his joining report,
which was acknowledged by the Society.
On 20.03.2023, the petitioner moved an
application
before
the
Assistant
Commissioner/
Assistant
Registrar,
Cooperatives, Bulandshahr, requesting that
the petitioner's salary held up since
November, 2022 may be directed to be
paid.
The
Assistant
Commissioner/
Assistant Registrar aforesaid by an order
dated 24th March, 2023 directed the
Committee of Management to ensure
payment of the petitioner's salary. The
petitioner
asserts
that
despite
acknowledging the petitioner's joining
report, nothing was done to meaningfully
accept the petitioner back in employment
pursuant to the appellate order. Therefore,
the petitioner instituted Writ-A No. 7033 of
2023, seeking the following material relief:

"i) issue a writ, order or direction in
the
nature
of
mandamus,
directing
respondents no.3 and 4 to reinstate
petitioner in service and pay his salary;"

9. Instead of reinstating the petitioner
or paying him his emoluments, the
petitioner was served with a notice dated
19.04.2023 jointly issued by the Sabhapati
592 INDIAN LAW REPORTS ALLAHABAD SERIES
and the Secretary of the Society and
another dated 25.04.2023, both requiring
the petitioner to appear and produce
evidence in his defence. An order of
dismissal was passed against the petitioner
again on 18.05.2023 by the Committee of
Management of the Society, that has been
notified by the Sabhapati and the Secretary
by the order impugned dated 18.05.2023.

10. The petitioner has averred in
paragraph No.23 that a copy of the
dismissal order was never served upon him,
but during the hearing of Writ-A No. 7033
of 2023, a copy of the said order was
produced before this Court. It was then that
the petitioner came to know about an order
of dismissal being passed against him
again. This Court, therefore, dismissed
Writ-A No.7033 of 2023 as infructuous,
vide order dated 29.05.2023. A copy of the
said order was directed to be supplied to
the petitioner by this Court.

11. In paragraph Nos. 29, 30 and 31
of the writ petition, it is averred that no
date, time and place of enquiry was fixed
before proceeding in the matter. It is further
averred that neither any enquiry has been
conducted nor an enquiry report drawn up
and supplied to the petitioner, despite clear
directions in that regard by the Appellate
Authority, setting aside the dismissal order
on the earlier occasion. It is averred in
paragraph No. 31 that no show cause notice
was issued to the petitioner before the
imposition of the major penalty of
dismissal.

12. In the counter affidavit dated
23.08.2023
filed
on
behalf
of
the
respondents, which is an affidavit filed by
Banwari
Lal
Sharma,
the
In-charge
Secretary of the Society, it is averred in
paragraph No.22 of the counter affidavit,
while answering paragraph Nos.28, 29 and
30 of the writ petition, thus:

"22. That the contents of paragraphs
no.28,29,30 of the writ petition are not
admitted and in reply it is stated that all the
proceedings initiated against the petitioner
in
accordance
with
law
after
due
procedure."

13. A counter affidavit has been
separately filed on behalf of respondent
No.3,
the
Assistant
Commissioner/
Assistant
Registrar,
Cooperatives,
Bulandshahr. In paragraph No. 25 of the
counter affidavit filed by respondent No.3,
the averments in paragraph Nos.29, 30 and
31 of the writ petition have been answered
by saying that these need no comments.

14. A personal affidavit of respondent
No.3 was also invited because of certain
allegations regarding permitting Banwari
Lal Sharma to function as the In-charge
Secretary of the Society, despite his
appointment being quashed by this Court.
The said affidavit is confined to the issue
aforesaid and allusion would be made to
that part of the controversy to the extent
necessary.

15. Two rejoinder affidavits have
been filed by the petitioner in answer to the
counter affidavit on behalf of respondent
No.6,
Banwari
Lal
Sharma
dated
28.03.2023. Another rejoinder affidavit has
been filed in answer to the counter affidavit
and personal affidavit filed by respondent
No.3.

16. Heard Mr. Anil Kumar Rai,
learned Counsel for the petitioner, Mr.
Rajesh Kumar Tiwari, learned Counsel
appearing on behalf of respondent No. 6
and Ms. Monika Arya, learned Additional
11 All. Dinesh Chand Sharma Vs. State of U.P. & Ors.
593
Chief Standing Counsel appearing on
behalf of respondent Nos.1, 2 and 3. No
one appears on behalf of respondent No.4
and 5.

17. Much has been made on behalf of
the petitioner of the issue that respondent
No.6, Banwari Lal Sharma, who had been
given additional charge of the Society, and
upon a challenge about that assignment by
the regular Cadre Secretary, Yadram before
this Court in Writ-A No.20683 of 2022,
was held not entitled to be given additional
charge of the Society, but still permitted to
continue in that office.

18. The petitioner has raised a
grievance about it, because it is the
petitioner's case that Banwari Lal Sharma
bore a grudge against him, thinking that the
petitioner was instrumental in setting up
Yadram to question his additional charge of
the
Society
before
this
Court. The
petitioner has urged that a biased Banwari
Lal
Sharma
has
sponsored
these
disciplinary proceedings and even signed
the order impugned along with the
Sabhapati, acting as the In-charge Secretary
of the Society, a position he could not have
held after the orders of this Court dated
12.12.2022 passed in Writ-A No.20683 of
2022. The petitioner says that he has been
much prejudiced because of Sharma's bias.

19. Banwari Lal Sharma has been
impleaded eo nomine and notice was issued
to him. He has filed a personal affidavit
being a counter affidavit dated 23.08.2023.
In paragraph Nos. 9, 10, 11 and 12 of the
affidavit filed by Banwari Lal Sharma, it is
said that after the orders of this Court, one
Ramesh Chandra Sharma was given
additional charge of the Society on
02.01.2023. He did not take that additional
charge and submitted a memo dated
18.01.2023 to the Assistant Commissioner/
Assistant
Registrar,
Cooperatives,
Bulandshahr, expressing his inability in the
matter,
on
ground
that
he
was
a
handicapped man, without one of his limbs,
and the distance of the Society from his
residence was over 30 kilometers. It is then
said in the affidavit that on account of
Ramesh Chandra Sharma not taking charge
of the Society and the Competent Authority
not appointing another Secretary, Banwari
Lal Sharma continued to work as the Incharge Secretary.

20. The explanation given about
permitting Banwari Lal Sharma to
continue as the Officiating Secretary
of
the
Society
by the Assistant
Commissioner/
Assistant
Registrar,
Cooperatives, Bulandshahr, is more
startling than the one offered by
Banwari Lal Sharma himself. It is
expressed in the following words in
paragraph No.5 of his affidavit dated
24.01.2023, which must be quoted for
every word of it:

"5. That in compliance of the order
dated 12.12.2022 passed by this Hon'ble
Court,
the
District
Administrative
Committee vide letter dated 02.01.2023
posted Sri Ramesh Chandra Sharma (Cadre
Secretary) by giving Additional Charge in
place of Sri Banwari Lal Sharma (Cadre
Secretary). In pursuance of the order dated
02.01.2023, Sri Ramesh Chandra Sharma
joined in the Chaudhera Committee on
14.03.2023.

It is further submitted that by proposal
no. 3 of the meeting dated 27.03.2023, the
committee of management Chaudhera
Committee rejected the contribution of Sri
Ramesh Chandra Sharma and by proposal
no. 4 of the said meeting again taken a
decision to send Sri Banwari Lal Sharma,
594 INDIAN LAW REPORTS ALLAHABAD SERIES
Cadre Secretary alongwith the signatory
Chairman to the Branch of Bank.

Thereafter, Mr Jagvir Singh, Cadre
Secretary, was directed for taking the Addl.
Charge in Chaudhera Committee vide
office order dated 03.05.2023, but due to
the
reason
that
the
Committee
of
Management has not allowed to contribute
Sri Jagvir Singh in the Society, by the
office letter no. 493 dated 06.06.2023 Sri
Raj Mal Singh Cadre Secretary, was
directed to have Addl. Charge of the
Chaudhera
Committee,
it
is
further
submitted that Sri Raj Mal Singh Cadre
Secretary
was
also
not
allowed
to
contribute
by
the
committee
of
management of Chaudhera Committee.
Thereafter, vide office letter no. 757 dated
28.06.2023 Sri Arvind Kumar, Cadre
Secretary was appointed at the original post
in the aforesaid society. In pursuance of
which Sri Arvind Kumar has given his
contribution in the society on 17.07.2023.
By the letter dated 28.06.2023 of the
Member Secretary, under the forwarding
year
transfer
policy
and
District
Administrative Committee, Sri Banwari Lal
Sharma
was
again
transferred
and
appointed from Home Development Block
to another Development Block.

That the deponent called meeting of
District Administrative Committee two
times for deciding the issue on 17.04.2023
& 09.06.2023 of removal of Banwari Lal
Sharma but the decision could not be taken
due to the reason that the corum of the
committee was not fulfilled."

21. This Court is opinion that ex facie
there was no justification for respondent
No.3 to permit Banwari Lal Sharma to
function for a single day as the Officiating
Secretary after this Court passed order
dated 12.12.2022 in Writ-A No.20683 of
2022. The reason, apart from the order
itself, is that this Court acted to prohibit
Banwari Lal Sharma holding that additional
charge because it was in violation of
Regulation 36(c) of the Uttar Pradesh
Primary Agricultural Cooperative Credit
Societies Centralised Service Rules, 1978,
that forbids a member to be posted in a
society located in the block, where he
permanently resides. Banwari Lal Sharma
was held to be a resident of Block Pahasu.
It was, therefore, most exceptionable to
permit him to continue as the Officiating
Secretary of the Society or holding its
additional charge in violation of the order
of this Court dated 12.12.2022 passed in
Writ-A No.20683 of 2022.

22. But, the issue here does not turn
much, though it may in the slight, upon
Banwari Lal Sharma illegally continuing as
the In-charge Secretary of the Society. The
reason is that the decision, that was taken in
terms of the order impugned to dismiss the
petitioner from service, is a decision of the
Board
of
Directors/
Committee
of
Management of the Society. The Sabhapati
and the Secretary of the Society may
have participated in some manner in the
decision making process, but they have
formally notified it. It is not a decision
entirely attributable to Banwari Lal
Sharma. Rather, it is the decision of a
multi-membered body. Therefore, the
element of bias, even if present, is
minimum and not efficacious enough to
influence the result.

23. What this Court, therefore, has
to see is if the petitioner was proceeded
with
in
departmental
proceedings
according to a procedure that is just,
fair and reasonable, and further, if it
conforms to the fundamentals of the
established procedure to hold a valid
departmental enquiry.
11 All. Dinesh Chand Sharma Vs. State of U.P. & Ors.
595

24. In paragraph Nos.29, 30 and 31 of
the writ petition it is averred that no date,
time and place of enquiry was fixed and
further that no enquiry has been conducted
nor an enquiry report drawn up. It is also
averred that no show cause notice was
issued
to
the
petitioner
before
the
impugned dismissal order was passed.
These averments have not been denied in
any of the counter affidavits or personal
affidavits filed on behalf of respondent
No.3 or 6. Rather, these have been
admitted. It is also true that in none of the
returns filed on behalf of the respondents,
is a copy of the enquiry report annexed, on
the foot of which the impugned order of
dismissal could be based.

25. It is true that notices appear to
have been sent to the petitioner to appear
before the Committee of Management,
which as the Disciplinary Authority could
have held the enquiry themselves. If the
petitioner did not appear in response to the
notice, the enquiry could be held ex parte.
During the enquiry to be held either by the
Committee of Management of the Society,
sitting as the Disciplinary Authority or by a
duly appointed Inquiry Officer or Inquiry
Committee, the establishment would have
to prove the five charges by leading
evidence, both documentary and oral. The
burden would initially rely upon the
establishment to let in some evidence
before whoever was inquiring into the
charges. It is not that if the petitioner did
not appear and submit a reply, the burden to
prove the charges that lies on the
establishment would stand discharged ipso
facto and the charges proved.

26. After all, the law in disciplinary
proceedings
too
is
that
it
is
the
establishment that has to prove the charges
before the Inquiry Officer/ Committee of
Management, or whoever is acting in that
capacity through a presenting officer,
producing
evidence
both
oral
and
documentary
on
behalf
of
the
establishment. After that is done, the
delinquent is burdened with a duty to
produce evidence in his defence. If the
employee/ delinquent is ex parte, still the
establishment have to prove the charges by
their evidence, may be ex parte.

27. The findings recorded in the
impugned order show that the statement of
a Chowkidar and an Accountant was
considered on the charge if manure was
unauthorisedly got taken out by the
petitioner and black-marketed. The order
does not show at all if this was the
statement offered by way of oral evidence
before an Inquiry Committee or before the
Committee of Management themselves,
sitting as an Inquiry Committee. From a
tenor of the order, it appears that the
Disciplinary Authority relied upon a
recorded statement of the Chowkidar and
the
Accountant,
may
be
during
a
preliminary enquiry, because there is no
reference to oral evidence being recorded,
either before the Disciplinary Authority or
some other Inquiry Committee or enquiry
officer.

28. In regard to the second charge,
which is about uauthorised felling of
Eucalyptus trees, selling them off and
misappropriating the price, all done without
sanction
of
higher
Authorities,
the
statement of a former Secretary, Nahar
Singh has been taken into consideration.
That statement too says that the petitioner
brought pressure upon the Committee of
Management to permit the sale after felling
the trees, whereas there was no permission
by the Committee of Management to sell
those trees. It is not at all clear if before a
596 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee of Inquiry or the Disciplinary
Authority, sitting as a Committee of Inquiry
themselves, Nahar Singh was examined as
a witness. A reading of the impugned order
shows that some statement by Nahar Singh,
earlier recorded, was acted upon. Likewise
is the position with the other charges.

29. In the absence of a copy of the
enquiry report or minutes of the enquiry, if
the
enquiry
was
held
before
the
Disciplinary Authority, the Committee of
Management themselves, being annexed to
the
counter
affidavit,
the
inevitable
conclusion is that the impugned order of
dismissal was passed on the basis of
perusal of records without any evidence,
documentary and particularly oral, being
led on behalf of the establishment. This
Court holds so assuming that the petitioner
remained ex parte and did not appear. Even
then, the respondents are not relieved of the
burden of holding an enquiry by salutary
principles of a fair procedure applicable to
domestic inquiries, where a major penalty
is imposed. In this connection, reference
may be made to the decision of the
Supreme Court in Roop Singh Negi v.
Punjab National Bank and others, (2009)
2 SCC 570, where it was held:

"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 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."

30. Likewise is the position of the law
enunciated by the Supreme Court in State
of Uttar Pradesh and others v. Saroj
Kumar Sinha, (2010) 2 SCC 772, where it
was held:

"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 crossexamination
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 quasijudicial 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
11 All. Dinesh Chand Sharma Vs. State of U.P. & Ors.
597
that the charges are proved. In the present
case 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."

31. A Division Bench of this Court
sitting at Lucknow in Smt. Karuna
Jaiswal v. State of U.P., 2018 (9) ADJ 107
(DB) (LB), considering the same issue and
taking note of the decision of their
Lordships in Saroj Kumar Sinha (supra),
held:

"14. It is also equally relevant and
significant to notice in this case that though
the petitioner failed to submit her reply to
the charge-sheet, however, the Enquiry
Officer did not fix any date, time and place
for oral enquiry. It is settled principle that
even in a situation where the delinquent
officer/employee does not submit reply to
the charge-sheet, the Enquiry Officer still
needs to prove the charges on the basis of
material and evidence available on record
and for the said purpose he needs to fix and
intimate to the charged officer, the date,
time and place for oral enquiry.

15. The law in this regard is very wellsettled and does not need a reiteration,
however, we may refer to a judgment of
Hon'ble Supreme Court in the case of State
of Uttar Pradesh and others v. Saroj Kumar
Sinha, (2010) 2 SCC 772, wherein it has
clearly been held that Enquiry Officer acts
as a quasi judicial authority and his position
is that of an independent adjudicator and
further
that
he
cannot
act
as
a
representative
of
the
department
or
disciplinary authority and further that he
cannot act as a prosecutor neither he should
act as a judge; his function is to examine
the evidence presented by the department
and even in the absence of the delinquent
officer, has to see as to whether the
unrebutted evidence is sufficient to bring
home the charges.

16. Hon'ble Supreme Court has further
held in the said judgment of Saroj Kumar
Sinha (supra) that it is only in case when
the Government servant, despite notice,
fails to appear during the course of enquiry
that Enquiry Officer can proceed ex parte
and even in such circumstances it is
incumbent upon the Enquiry Officer to
record the statement of witness.

17. In the instant case, no oral enquiry
was held, neither the petitioner was given
any notice to participate in any oral enquiry
by fixing date, time and place for oral
enquiry. It is only that the Enquiry Officer
after noticing that despite sufficient time
having been given to the petitioner, she did
not furnish her reply to the charge-sheet, he
proceeded to submit ex parte report without
conducting any oral enquiry by fixing date,
time and place for such an oral enquiry.
Accordingly, the Enquiry Officer, in this
case, has violated the aforesaid principles,
which
clearly
vitiates
the
enquiry
proceedings and any punishment order
based on such a vitiated enquiry, is clearly
not sustainable."

32. In view of what has been said
above, this Court finds that the impugned
order cannot be sustained.

33. In the result, this writ petition
succeeds and is allowed. The impugned
order is hereby quashed. A mandamus is
issued to the respondents to reinstate the
petitioner in service forthwith, and pay him
salary from the date of this judgement. It
will be open to the respondents to proceed
afresh from the stage of the charge-sheet,
strictly in accordance with law, and as per
guidance
in
this
judgement.
If
the
598 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents elect to proceed in accordance
with law, they may not, for the present,
consider the issue of payment of back
wages, which shall be subject to the result
of the disciplinary proceedings to be taken
afresh. If the petitioner is exonerated in the
disciplinary proceedings, the respondents
will consider, depending on the findings,
the petitioner's entitlement to back wages.
Likewise, if the respondents do not elect to
proceed afresh, the petitioner will be
entitled to 50% back wages together with
continuity of service and seniority.

34. There shall be no order as to costs.
----------
(2023) 11 ILRA 598
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.11.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J
THE HON'BLE MANISH KUMAR, J.

Writ-C No. 3990 of 2014

Prem Prakash Yadav ...Petitioner
Versus
Union of India ...Respondent

Counsel for the Petitioner:
Chandra Kala Pandey, Prince Verma, Ravi
Shanker Tewari, Santosh Kr. Yadav Warsi

Counsel for the Respondents:
C.S.C., A.S.G., Amarjeet Singh Rakhra, Gaurav
Mehrotra, Maria Fatima, V.K. Dubey

A. Civil Law - Constitution of India,1950 -
Article 226 - Writ Petition - Forum
Conveniens - Forum Hunting - In civil
proceedings, the plaintiff is the dominus
litis, but where more than one court has
jurisdiction, the Court can determine
which is the convenient forum and may
impose conditions in the interest of justice
subject to which its jurisdiction may be
invoked. Petitioner alone does not have an
exclusive discretion to choose jurisdiction
when it lies at multiple places.
In
appropriate cases, the Court may exercise
its inherent jurisdiction to fix the forum,
considering
the
convenience
of
the
parties, witnesses, and the Court itself. A
party has a choice to invoke jurisdiction
either at Allahabad or at Lucknow, but
once that choice is exercised, it should
ordinarily be adhered to in subsequent
proceedings.
Having
chosen
one
jurisdiction, a petitioner cannot shift to
another without cogent reasons, which
were absent in this case. Mere availability
of
concurrent
jurisdiction
either
at
Allahabad or Lucknow does not confer a
right to indulge in forum shopping. It is
not merely the petitioner's convenience
but also that of all concerned, including
the Court, that matters. - In the instant
case petitioner had earlier filed Civil Misc.
Writ Petition No. 17060 of 2002 and WritC No. 15798 of 2010 at Allahabad for the
same relief concerning the same property.
The instant petition, filed at Lucknow,
being the third in respect of the same
property, was held not maintainable.
(Para 12)

B. Allahabad High Court Rules, 1952 -
Chapter 22, Rule 1 - Mandatory Disclosure
- In the instant case the petitioner failed
to disclose in paragraph 1 of the writ
petition whether any earlier writ petitions
had been filed, as mandatorily required
under Chapter 22, Rule 1 of the Allahabad
High Court Rules, 1952. Such disclosure
must be made in the very first paragraph
and not elsewhere. The omission to
disclose earlier petitions filed at Allahabad
amounts to forum hunting and not forum
conveniens. (Paras 5, 6, 7, 8)

C.
United
Provinces
High
Court
(Amalgamation) Order, 1948, Clause 14 -
Transfer of Petitions -
Petitions can be transferred by the Chief
Justice
while sitting
at
Lucknow
to
Allahabad, but not vice versa. Matters
filed at Allahabad can be heard only at