# Dinesh Kumar Ojha v. The State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-09
- **Case number:** Writ A No. 11122 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-ojha-v-the-state-of-u-p-ors-51686
- **Pages:** 17

## Headnote

A. Service Law - Disciplinary proceeding -
Removal from service - Earlier proceeding
was quashed by the High Court giving
liberty to proceed afresh - Even during
fresh proceeding, no charge-sheet was
served - There was no postal remark of
refusal - No time was fixed to conclude
inquiry
-
No
evidence
was
led
by
establishment
-
Effect
-
Held,
the
proceeding are again held to have been
done ex parte - Assuming that the
petitioner was served with the chargesheet and he did not participate in the
inquiry,
it
did
not
mean
that
the
respondents could just hold the charges
proved by looking into the charge-sheet
and the papers filed with it - At the said
inquiry, the establishment have to prove
the charges by leading their evidence,
both documentary and oral. Witnesses
have to be examined - Held further, the
Inquiry Officer far from adherence to the
salutary principle, where the Inquiry
Officer, sitting like an impartial arbiter,
would have before him evidence both
documentary and oral led to prove the
charges by the establishment has done
nothing of the kind. (Para 34, 35, 36 and
45)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,888 of 58,831. This is a partial read: ask again with offset=39888 for what follows._

3 All. Dinesh Kumar Ojha Vs. The State of U.P. & Ors.
531
concluded
proceedings
cannot
be
questioned. It is only in the case where
steps have not been taken by the
authorities.
The
lapse
or
higher
compensation is provided under Section
24(2) and its proviso under the 2013 Act."

16. Thus, in view of the exposition of
law and rule of interpretation, I do not find
any merit in the submissions of learned
Senior Advocate, Mr. R.K. Ojha. Writ
petition lacks merit and is, accordingly,
dismissed.

17. There will be no order as to cost.
----------
(2024) 3 ILRA 531
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 11122 of 2023

Dinesh Kumar Ojha ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prashant Kanha, Sri Nikhil Kumar

Counsel for the Respondents:
C.S.C., Sri Satyam Singh, Sri Baibhav
Tripathi

A. Service Law - Disciplinary proceeding -
Removal from service - Earlier proceeding
was quashed by the High Court giving
liberty to proceed afresh - Even during
fresh proceeding, no charge-sheet was
served - There was no postal remark of
refusal - No time was fixed to conclude
inquiry
-
No
evidence
was
led
by
establishment
-
Effect
-
Held,
the
proceeding are again held to have been
done ex parte - Assuming that the
petitioner was served with the chargesheet and he did not participate in the
inquiry,
it
did
not
mean
that
the
respondents could just hold the charges
proved by looking into the charge-sheet
and the papers filed with it - At the said
inquiry, the establishment have to prove
the charges by leading their evidence,
both documentary and oral. Witnesses
have to be examined - Held further, the
Inquiry Officer far from adherence to the
salutary principle, where the Inquiry
Officer, sitting like an impartial arbiter,
would have before him evidence both
documentary and oral led to prove the
charges by the establishment has done
nothing of the kind. (Para 34, 35, 36 and
45)

Writ petition allowed. (E-1)

List of cases cited :-

1. St. of U.P. & ors.Vs Saroj Kumar Sinha;
(2010) 2 SCC 772

2. Roop Singh Negi Vs Punjab National Bank &
ors.; (2009) 2 SCC 570

3. St. of U.P. & anr.Vs Kishori Lal & anr.; 2018
(9) ADJ 397 (DB) (LB)

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

5. St. of U.P. Vs Aditya Prasad Srivastava &
anr.; 2017 (2) ADJ 554 (DB)(LB)

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

1. This writ petition is directed
against an order of removal from service
dated
30.05.2023
passed
against the
petitioner by the Managing Director, U.P.
State Handloom Corporation Limited,
Kanpur Nagar.

2. It would be profitable to refer to
facts giving rise to this writ petition. The
petitioner was appointed to the post a
Salesman in the year 1994 by an order
532 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the Managing Director, U.P.
State Handloom Corporation Limited,
Kanpur
Nagar
(for
short,
'the
Corporation'). The petitioner says that he
has been working ever since and until
orders depriving him of his employment
were passed. The petitioner says that he has
had an unblemished career with no
complaint, punishment or adverse entry
awarded to him. Prior to the present
proceedings, he was never subjected to any
disciplinary
proceedings.
About
the
Corporation, the petitioner says that it was
established in the year 1973 by the State
Government as a Government Company
registered
under
Section
67
of
the
Companies
Act,
1956.
The
State
Government has a share holding to the
extent of 77.42% with the balance 22.58%
being owned by the Central Government.
Thus, the Corporation is fully owned and
controlled by the two Governments. The
Chairman, the Managing Director and the
entire Board of Directors are appointed by
the State Government.

3. According to the petitioner, because
of poor management by officials of the
State Government, the financial condition
of the Corporation became pitiable, as the
petitioner has chosen to describe it. The
Corporation is not in a position to pay
salary to its employees, who were,
therefore, frequently transferred from one
place to another without any rhyme or
reason. It is pointed out that raising this
issue, a writ petition being Writ Petition
No.3442(S/S)
of
1999,
U.P.
Rajya
Hathkargha
Nigam
Ltd.
Kshetriya
Karamchari Sangathan and others v. State
of U.P. and others, was filed before the
Lucknow Bench of this Court, where an
interim order dated 06.08.1999 was passed
to the effect that if salary to the members of
the petitioner association is not paid, they
will not be able to leave their place of
posting, which would be in violation of
Article 21 of the Constitution. The said
petition is represented to be still pending
before the Lucknow Bench, where further
orders dated 07.01.2013, 12.03.2013 and
22.04.2013 have been passed.

4. The petitioner says that because of
the poor financial condition of the
Corporation, a state of anarchy became
order of the day with the Managing
Director
of
the
Corporation
asking
employees to work in the field in order to
raise revenues to pay off rent for the
building occupied by the Sale Centres of
the Corporation. The income from the sale
of handloom goods, because of poor
quality,
fell
drastically,
leading
to
effacement of revenues. Several salesmen
could not garner resources to pay off rent of
the buildings, where Sale Centres of the
Corporation were functioning.

5. The Managing Director placed the
petitioner
under
suspension,
as
the
petitioner says, on bogus, false and vague
allegations that the petitioner could not
make payment of rent for the Sale Centre
premises and did not comply with the
directions of the Head Office. A chargesheet was issued to him on 06.02.2013 with
a direction to submit a reply within 21
days. The petitioner put in his reply dated
12.08.2013, denying the charges. The
Managing Director of the Corporation
without considering the petitioner's reply in
the proper perspective, concluded the
proceedings initiated against the petitioner
and revoked his order of suspension,
reinstating him in service with a warning.
This order was passed on 11.09.2013,
which attached the petitioner with the
office of the Corporation at the Lindsey
Street, Kolkata. The petitioner says that
3 All. Dinesh Kumar Ojha Vs. The State of U.P. & Ors.
533
prior to the order dated 11.09.2013, he was
posted at the Sale Centre, Jamshedpur in
the State of Jharkhand and all his family
were
residing
with
him
there. The
petitioner's children were reading at
Jamshedpur.

6. It is also averred that the petitioner
is a permanent resident of Village and Post
Pandeypur, P.S. Bairia, District Ballia,
which is in the vicinity of Jamshedpur.
Prior to his suspension from service, the
petitioner's
salary
was
Rs.5,612/-.
However, during the period of suspension,
he was not paid his subsistence allowance.
The Managing Director of the Corporation
did not pay the petitioner's salary for
preceding 24 months, antedating his
suspension on 25th January, 2012, due to
which the petitioner and his family were on
the verge of starvation. It was not possible
for him to make his ends meet.

7. It is the petitioner's case that
without paying him salary and subsistence
allowance for a period, as long as two years
or more, to ask him to go over and serve at
the Corporation's office at Kolkata, was
totally illegal and in violation of Article 21
of the Constitution. It is the petitioner's
case that the order dated 11.09.2013 was
passed without any opportunity of hearing
or issuing him with any charge-sheet. The
order was also castigated as bad in law
because prior to the said order, for two
years and more, he was neither paid his
salary nor the subsistence allowance. The
petitioner, in the circumstances, made a
number of representations immediately
after reinstatement in service and moved an
application dated 28.10.2013 before the
Managing Director requesting that out of
the twenty-four months' unpaid salary, at
least ten months' salary be paid, so that he
may submit his joining report at the station
of transfer, to wit, Kolkata. When the said
application evinced no action, the petitioner
made
another
application
on
10th
November, 2013 to the same effect, but the
latter application also led to no result. This
was followed by two other applications
dated 25.11.2013 and 24.12.2013.

8. Aggrieved by the order punishing
the petitioner dated 11.09.2013 and the
Corporation's inaction, the petitioner filed
Writ-A No.15589 of 2014, seeking the
following material reliefs:

(a) issue a writ, order or direction
in the nature of certiorari calling for the
record of the case and quashing the
impugned order dated 11.09.2013 passed
by the respondent No.2.

(b) issue a writ, order of direction
in the nature of mandamus commanding
the respondent No.2 to make payment of
entire arrears of salary to the petitioner
along with 10% simple interest."

9. The petition was entertained and
the learned Standing Counsel directed to
seek instructions from the respondents by
an order of this Court dated 12.03.2014. No
sooner was the writ petition last mentioned
filed by the petitioner and instructions
called, the Managing Director of the
Corporation, as a measure of reprisal,
directed a notice to be served upon the
petitioner, asking him to show cause within
15 days, why his services may not be
terminated. When Writ-A No.15589 of
2014 next came up before this Court on
24.03.2014, an interim order was passed to
the effect that the petitioner would join at
the station of transfer within three weeks
and further that in view of the undertaking
given on behalf of the Managing Director,
the arrears of salary due to the petitioner
534 INDIAN LAW REPORTS ALLAHABAD SERIES
would be paid within two weeks of his
joining the station of transfer.

10. In compliance with the order
dated 11.09.2013 passed by the Managing
Director and the interim order dated
24.03.2014 passed by this Court, the
petitioner went over to submit his joining
report to the In-charge of the Corporation's
office, Lindsey Street, Kolkata. Reaching
there on 31.03.2014, the petitioner was
surprised to find that the building, where
the office of the Corporation earlier existed,
there
was
a
showroom
of
another
establishment by the name 'M-Fie'. At the
specified address, neither the showroom of
the Corporation was in existence nor any
employee of theirs present. There was not
even a board installed at the gate of the
showroom,
showing
it
to
be
the
Corporation's establishment.

11. It is asserted in Paragraph No.28
of the writ petition, amongst other things,
that
the
building
where
earlier
the
showroom of the Corporation was running
at Kolkata, was handed over by the officials
of the Corporation to private persons in
some kind of a Public Private Partnership.
There is annexed on record copy of a
communication dated 31.03.2014, sent by
the petitioner through fax to the Managing
Director of the Corporation, indicating that
in the premises, where the showroom of the
Corporation used to be located at the
Lindsey Street, Kolkata, there was no
showroom in existence. Instead, another
showroom belonging to 'M-Fie' was
running there. Accordingly, the petitioner
said that he was informing the Managing
Director of the said fact and returning from
Kolkata.

12. The petitioner then made another
application
dated
31.03.2014
to
the
Managing Director of the Corporation for
further directions, but nothing was done.
The petitioner submitted still another
application dated 07.04.2014, requesting
the Managing Director to issue appropriate
directions to the petitioner to join. The
Managing Director instead of issuing any
directions for the petitioner to join or pay
his salary, removed him from service vide
an order dated 12.05.2014.

13. This Court notices that in
Paragraph No.32 of the writ petition, there
is an averment to the effect that the
Managing Director has incorrectly recorded
in his order dated 12.05.2014 that the
petitioner did not contact the In-charge
Marketing, Kolkata, Mohd. Sayeed Ansari
or any competent officer in the Head
Office. It is said that the petitioner in his
letters dated 31.03.2014 and 07.04.2014
categorically stated that no officer of the
Corporation was in existence at the Lindsey
Street, Kolkata. Under these circumstances,
there was no question of contacting any
official of the Corporation. Nevertheless, it
is averred that the Managing Director in
order to cover his own misdeeds, removed
the petitioner from service. It is averred in
Paragraph No.33 of the writ petition that
the petitioner along with the letter dated
31.03.2014
sent
photographs
of
the
building, located at the Lindsey Street,
Kolkata
that
used
to
house
the
Corporation's showroom. The photographs
show that the site is now occupied by the
showroom of an apparel store by the name
'Hyphon'.

14. It is averred in Paragraph No.35
of the writ petition that regarding the illegal
possession and transfer to private parties of
several showrooms of the Corporation,
complaints were filed to the higher officials
in the matter. The Managing Director by his
3 All. Dinesh Kumar Ojha Vs. The State of U.P. & Ors.
535
memo
dated
23.07.2013
sought
an
explanation of Mr. R.N. Gupta, Senior
Manager (Production). A copy of the said
letter is annexed as Annexure No.16 to the
writ petition. The Managing Director is
also said to have directed the Assistant
Manager (Marketing) to conduct an inquiry
regarding showrooms of the Corporation
being illegally occupied by private persons.
The Assistant Manager (Marketing) by his
report dated 26.08.2013 informed the status
of showrooms of the Corporation saying
there
that
certain
officials
of
the
Corporation in collusion with private
persons
have
illegally
handed
over
possession of the Corporation's showrooms
to third parties. The Managing Director
concurred with the report and directed
initiation of legal proceedings. A copy of
the report dated 26.08.2013 submitted by
the
Assistant
Manager
(Marketing),
addressed to the Managing Director, is on
record as Annexure No.17 to the writ
petition.

15. It was in the background of these
facts, according to the petitioner, that he
could not join his station of posting at
Kolkata, where there was no office in
existence. Nevertheless, the petitioner was
removed from service by the Managing
Director, as already said, by the order dated
12.05.2014. The petitioner challenged this
order, moving an amendment application in
Writ-A No.15589 of 2014, which was
allowed and the petitioner permitted to
amend the writ petition. The Corporation
was granted time to file a counter affidavit,
but none was filed.

16. This Court by an order dated
11.04.2023 held that the order dated
12.05.2014, removing the petitioner from
service, was one passed without serving
any charge-sheet or holding an inquiry. It
was, accordingly, set aside, leaving it open
to the respondents to hold an inquiry afresh
in accordance with law against the
petitioner and pass appropriate orders.
There is a remark in the order of this Court
dated 11.04.2023 to the effect that in case
an inquiry is held, the petitioner will fully
cooperate with the same, without causing
any unnecessary delay. The petitioner,
together
with
an
application
dated
25.04.2023, served a certified copy of the
order dated 11.04.2023 passed in the writ
petition last mentioned in the office of the
Managing Director of the Corporation,
personally.

17. The copy of the application was
marked by the Managing Director to the Incharge
Manager
Inquiry.
It
is
the
petitioner's case that nothing happened, in
consequence. The petitioner then received a
notice dated 19.05.2023 on 22.05.2023,
requiring him to submit his reply by
26.05.2023 to the inquiry report submitted
by the Inquiry Officer. It is the petitioner's
case that he is residing at Jamshedpur,
Jharkhand. But, in the notice dated
19.05.2023,
three
addresses
of
the
petitioner are mentioned. The petitioner
further on says that out of the three
addresses mentioned, he lives at the second
of these. It is also the petitioner's specific
case that from the tenor of the notice dated
19.05.2023, it is evident that the Managing
Director
of
the
Corporation
was
predetermined to remove the petitioner
from service, and, as such, without the
provision of a reasonable opportunity,
notice to show cause was issued.

18. According to the petitioner, he has
furnished his reply dated 26.05.2023 to the
show cause notice dated 19.05.2023 with a
prayer that the inquiry report may be set
aside and a copy of the charge-sheet
536 INDIAN LAW REPORTS ALLAHABAD SERIES
provided to him with a month's time to
answer it. The petitioner has also averred in
Paragraph No.42 that he said in his reply
dated
26.05.2023
that
he
wants
to
personally examine Mohd. Sayeed Ansari,
and, as such, opportunity of a personal
hearing may be extended to him. The
Managing Director by his memo dated
12.06.2023 rejected the petitioner's reply
dated
26.05.2023,
holding
that
the
petitioner was not cooperating with the
inquiry, despite the orders passed by this
Court. It is on the foot of the aforesaid
allegations that the Managing Director
passed
the
order
impugned
dated
30.05.2023, as the petitioner says, in utter
violation of principles of natural justice,
removing the petitioner from service. The
petitioner has pleaded in Paragraph No.44
of the writ petition that he was earlier
removed from service without conducting
an inquiry and the said order was quashed
by this Court by our order dated
11.04.2023, passed in Writ-A No.15589 of
2014.

19. The petitioner received the notice
dated 19.05.2023 on 22.05.2023, asking
him to show cause, along with a copy of
the inquiry report. The petitioner furnished
his reply by means of his representation
dated 26.05.2023, which was received in
the office of the Managing Director on
03.06.2023. However, prior to receipt of
the
petitioner's
reply,
the
Managing
Director passed his order dated 30.05.2023,
removing the petitioner from service. It is
the petitioner's case that the entire
proceedings have been carried out in undue
haste, arbitrarily and unfairly, all in
violation of principles of natural justice.

20. In Paragraph Nos.46 and 47 of the
writ petition, it is averred:

"46. That, in the present case, as
per the impugned order it appears that the
inquiry has been initiated on 20.04.2023
but no Charge-Sheet was served upon the
petitioner no opportunity to rebut the
allegations made in the Charge-Sheet were
provided to the petitioner and it is
incorrectly stated in the impugned order
that the petitioner did not receive the
Charge-Sheet. It appears that the ChargeSheet was sent at the wrong address of the
petitioner, as the petitioner received the
notice dated 19.05.2023 and the impugned
order dated 30.05.2023 but why the
petitioner could not receive the ChargeSheet and alleged communication made by
the respondent no.3 because the respondent
no.2 was determined to remove the
petitioner from service and that is why
Charge-Sheet and other communication
made by the respondent no.3 were on
wrong address.

47. That, it is surprising that on
the same address the petitioner received the
notice dated 19.05.2023 and the impugned
order
dated
30.05.2023
passed
by
respondent No.2 but the copy of ChargeSheet or any communication with the
Inquiry Officer was never received by the
petitioner. In fact, the petitioner inquired
from the concerned post office that any
postal letter was returned by the postman
on the ground of non-availability of the
petitioner the postman after inspecting the
records stated that no postal letter in the
name of the petitioner was ever returned by
him."

21. It is the petitioner's further case in
Paragraph No.52 of the writ petition that no
charge-sheet was served upon him and no
notice for a personal hearing was issued to
the petitioner by the Inquiry Officer. No
date, time and place was fixed by the
3 All. Dinesh Kumar Ojha Vs. The State of U.P. & Ors.
537
Inquiry Officer asking the petitioner to
appear for personal hearing.

22. The petitioner also says that in
consequence of the order dated 11.04.2023
passed by this Court, where the order of
removal from service earlier passed dated
12.05.2014 was quashed, there was a
direction in terms: 'Consequences to
follow.' It was, therefore, imperative for the
Managing Director of the Corporation to
reinstate the petitioner in the first instance
and pay all his arrears of salary. That,
however, was not done. He was neither
paid salary nor subsistence allowance for
the
period
that
he
remained
under
suspension pending proceedings that led to
the earlier order of removal. It is next
pleaded on behalf of the petitioner that the
only charge now levelled against the
petitioner is that he did not join the place of
posting. The petitioner says that despite the
petitioner
properly
and
satisfactorily
explaining the reason for not so joining, the
petitioner was punished with a major
penalty again.

23. It is averred in Paragraph No.58
of the writ petition that if the petitioner did
not participate in the inquiry, the Inquiry
Officer was under an obligation to require
the establishment to examine the record
available before them, but they did not do
so. Both the Inquiry Officer and the
Disciplinary
Authority
have
recorded
perverse finding based on non-existing
materials. In Paragraph Nos.61 and 62 of
the writ petition, it is averred:

"61.
That,
from
the
own
documents of the respondent corporation, it
is clear that no showroom of U.P. State
Handloom Corporation Ltd. is in existence
at Lindsey Street Kolkata, even then the
petitioner was attached with a non-existent
showroom only to prepare a background to
remove the petitioner from his service.

62. That, entire exercise of
transfer and attachment of the petitioner
without payment of arrears of salary suffers
from vice of malafide and the impugned
order is totally malafide, illegal, arbitrary
and colourable exercise of power."

24. The petitioner has also averred in
Paragraph No.68 of the writ petition that
the entire inquiry was done ex parte and at
no stage, the petitioner was invited to
participate, as no charge-sheet was ever
served upon the petitioner and no Inquiry
Officer appointed. The punishment has
been
castigated
as
shockingly
disproportionate. The impugned order is
also alleged to be mala fide.

25. A counter affidavit on behalf of
respondent No.3 and a personal affidavit on
behalf of respondent No.3, that is to say,
the Inquiry Officer, Suhaib Anwar Ansari,
Manager Production of the Corporation,
have been filed.

26. Heard Mr. Nikhil Kumar, learned
Counsel for the petitioner, Mr. Baibhav
Tripathi, learned Counsel appearing on
behalf of respondent Nos.2 and 3 and Mr.
Akhilesh Kumar Tripathi, learned Standing
Counsel appearing for respondent No.1.

27. Upon hearing learned Counsel for
the parties, this Court must say that there
are many things about the validity of
proceedings against the petitioner that
could be gone into and decided. But,
considering
that
there
is
a
serious
procedural lapse going to the root of the
matter, this Court is not minded to examine
the many other issues involved. It is
noticed that the petitioner had earlier faced
disciplinary proceedings, based on a
538 INDIAN LAW REPORTS ALLAHABAD SERIES
charge-sheet
dated
06.02.2013,
which
culminated in an order of removal from
service dated 12.05.2014, since quashed by
this Court vide order dated 11.04.2023
passed in Writ-A No.15589 of 2014.
Liberty was given to the respondents to
proceed afresh against the petitioner, giving
him due opportunity. The ground to quash
the earlier order was non-holding of an
inquiry into the charges. Liberty was,
therefore, given to the respondents to
proceed afresh in accordance with law. Of
course, the petitioner was directed to
cooperate with the inquiry. If one were to
look at the charge-sheet dated 06.02.2013,
it was one on a completely different set of
charges than those that are the subject
matter of the present proceedings. The
charge-sheet dated 06.02.2013 issued by
the Managing Director of the Corporation
carried three charges, which read:

"आरोप सां. 1- यह वक मुख्यालय के पत्राांक सांख्या
1082-84 विनाांक 26.05.2010, पत्राांक 2702-3 विनाांक
27.08.2010 एवां पत्र सांख्या 4980-83/ नजारि विनाांक
18.01.2011 के माध्यम से वबक्री केन्र के अवर्शेर् वकराये के
भुगिान हेिु आपको वनिेवर्शि वकया गया, वकन्िु आप द्वारा
मुख्यालय के आिेर्शों की अवहेलना करिे हुए वबक्री केन्र का
वकराया मकान मावलक को भुगिान नही वकया गया वजससे वनगम पर
वाि की वस्थवि उत्पन्न हो गयी वजसके वलए आप िोर्ी है।

अस्िु वनगम के आिेर्शों की अवहेलना करने,
स्वैच्िाचारी ढांग से काया करने हेिु आरोवपि।

आरोप सां0-2 - यह वक मुख्यालय के आिेर्शाांक
2895-2901/ स्था0 -2 / 11-12 विनाांक 19.09.2011
द्वारा आपका स्थानान्िरण वबक्री केन्र जमर्शेिपर से वबक्री केन्र
हवजिया वकया गया वकन्िु आप द्वारा नये िैनािी स्थल पर योगिान
नही वकया गया जो वक आपकी अनुर्शासनहीनिा का द्योिक है और
वजसके आप िोर्ी है।

अस्िु वनगम के आिेर्शों की अवेहलना करने मनमाने
ढांग से काया करने एवां वनगम सेवा वनयमावली के ववरुद्ध आचरण
करने हेिु आरोवपि।

आरोप सां0-3- यह वक मुख्यालय के पत्राांक
4071-79 विनाांक 25.01.2012 द्वारा सेवा से वनलवम्बि करिे
हुए वबक्री केन्र के एक अन्य कावमाक श्री मनीलाल वबक्रेिा को
प्रभार हस्िानान्िरण हेिु आपको आिेवर्शि वकया गया था वजसके
अनुक्रम में प्रभारी पररक्षेत्र कोलकािा द्वारा भी पत्राांक 404-06
विनाांक 13.02.2012 के माध्यम से प्रभार हस्िान्िरण हेिु
वनिेवर्शि वकया गया वकन्िु आप द्वारा जानबूझ कर प्रभार हस्िान्िरण
न कर अवकार्श पर चले गये वजसके वलए आप पूणा रूप से िोर्ी हैं।

अस्िु वबक्री केन्र का वकराया भुगिान न करने,
स्वेच्िाचारी ढांग से काया करने, अनावश्यक ववविक वाि उत्पन्न
करने, वनगम का पक्ष कमजोर करने िथा प्रभार स्थानान्िरण न करने
हेिु आरोवपि।"

28. The order of termination from
service dated 12.05.2014 since quashed by
this Court vide order dated 11.04.2023,
passed in the writ petition above referred,
was founded on the three charges, above
indicated. This Court while quashing the
order of termination on ground that the no
inquiry was held, granted liberty to proceed
afresh. Normally, this means that the
respondents would have liberty to proceed
on the basis of the same charge-sheet, that
was subject matter of earlier proceedings.
Here, something else happened. After the
order of this Court dated 11.04.2023 was
passed,
a
fresh
charge-sheet
dated
20.04.2023 was issued to the petitioner, a
copy of which is annexed as part of
Annexure No. CA-3 to the counter affidavit
filed by respondent Nos.2 and 3. This
charge-sheet carries two charges, that are
entirely distinct and different from the
charges carried in the charge-sheet dated
06.02.2013, on the basis of which the
earlier order of removal from service dated
12.05.2014 was passed. The charge-sheet
dated
20.04.2023,
about
which
the
respondents say now that they attempted to
serve a copy by dispatching it to three
different
addresses
of
the
petitioner
available with them, relates to charges for
things that happened in the year 2013.
3 All. Dinesh Kumar Ojha Vs. The State of U.P. & Ors.
539

29.

The
charge-sheet
dated
06.02.2013,
on
which
the
earlier
proceedings, of whatever kind, since
quashed, were held related to the years
2010, 2011 and 2012. Thus, both the
charge-sheets relate to acts of omission and
commission attributed to the petitioner,
more or less contemporaneous in time.
Since by the order of this Court dated
11.04.2023 passed in Writ-A No.15589 of
2014, the respondents were given liberty to
proceed afresh after quashing the order of
removal
from
service,
the
logical
consequence
would
be
that
fresh
proceedings taken, would rest on the same
charges as the one culminating in the
earlier order of removal. Nevertheless, the
respondents have proceeded on the basis of
a fresh charge-sheet, carrying completely
different charges, detailed in the chargesheet dated 20.04.2023.

30. There is no prohibition in doing
that, but perhaps it would not be a
continuation of the earlier proceedings,
founded on the original charge-sheet. This
may be regarded as fresh proceedings with
the earlier proceedings either given or kept
back by the respondents in their pocket to
be utilized at some subsequent point of
time. If the respondents do not wish to
proceed with the charges afresh carried in
the charge-sheet dated 06.02.2013, there is
nothing in the order dated 11.04.2023, that
would govern the fresh inquiry that was
undertaken. The reason is that it is on a
completely different set of charges carried
in a different charge-sheet, the respondents
have now proceeded.

31. This Court thinks that if the
respondents intended to proceed on the
basis of a fresh charge-sheet and not the
one they were given liberty to proceed with
afresh, they either ought to have issued
both charge-sheets to the petitioner afresh
or put in him to that notice, or combined
the charges into a single charge-sheet. It
would indeed be an abuse of process of
disciplinary proceedings, in circumstances
such as these, and not as a universal rule to
issue successive and different charge-sheets
to the petitioner, forcing him to face
multiple inquiries while all the charges
could be determined at the same inquiry,
whether carried in a single charge-sheet or
two charge-sheets, dealt with together.
Since, the respondents have not chosen to
proceed afresh with the charge-sheet dated
06.02.2013, a liberty given to them by this
Court by our order dated 11.04.2023 passed
in Writ-A No.15589 of 2014, it must be
held that the respondents have given up
those charges and brought fresh ones
carried
in
the
charge-sheet
dated
20.04.2023.

32. This case has its own distinct
features making it one that may not fit the
standard mould. The pleadings of parties
and the evidence on record reflect that the
Corporation is not in a very sound state of
financial health. There is some case and
evidence to show that there is difficulty in
paying off rent for the Sale Centres housed
in rented buildings. The attention of this
Court in this connection has been drawn to
a letter dated 23.07.2013, addressed by the
Managing Director of the Corporation to its
Senior Manager (Production). The letter
shows that there was some kind of a
scheme for sharing the premises of Sale
Centres with other partners, taking a part of
the premises to carry on business. This was
perhaps to raise revenue for the rent
payable to the landlords of the premises.
This letter further shows that one of the
Sale Centres at Kolkata was shared with a
partner M/s. Priya Gopal Bishoji Marketing
Pvt. Ltd., Kolkata. For the purpose, the
540 INDIAN LAW REPORTS ALLAHABAD SERIES
Senior
Manager
(Production)
of
the
Corporation at Kanpur issued a letter dated
19.08.2010 to the Officer In-charge at
Kolkata to transfer two counters on the
backside of the Centre to the partner. It
transpires that the partner in order to
unauthorizedly occupy the premises of the
Sale Centre got it renovated, without
annexing any sketch or lay out plan. It is
this kind of evidence which shows that the
Corporation has been gasping for finances
to run its Centres and pay off its
employees. It is in the backdrop of this
state of affairs that the charges against the
petitioner have to be viewed.

33. There are some further facts,
which are relevant. It has already been
noticed that the petitioner has not been paid
twenty-four months of his salary prior to
his suspension dated 25.01.2012 and no
subsistence allowance for the period of
suspension. After this Court allowed the
petitioner's earlier writ petition and quashed
the order of termination from service, the
petitioner was again not paid salary. The
justification now offered not to pay salary
appears to be that he did not join the
Kolkata office, and it is for this reason that
a different charge-sheet has been issued to
him, accusing him of completely different
charges than those on which he was earlier
removed from service.

34. In these circumstances, if the
petitioner has said that he was not served
with the charge-sheet dated 20.04.2023, it
is possible to infer that he was not. There is
no postal remark to show that in fact he
refused to accept any of the registered
covers carrying the charge-sheet. The
impugned
order
30.05.2023,
again
removing the petitioner from service, was
passed with unsavory haste, the chargesheet being one dated 20.04.2023. The
justification for this haste is that this Court
had directed fresh inquiry to be held. There
was no such direction, but only an option
given to the respondents. There was no
time fixed to conclude the inquiry, as may
have impelled the respondents to hurriedly
infer service upon the petitioner. In any
case, the charge-sheet being one that was
different from that, that was the subject
matter of proceedings leading to the earlier
order
of
removal
dated
12.05.2014,
directions of whatever kind carried in the
orders of this Court dated 11.04.2023 did
not apply to proceedings now initiated
based on a different charge-sheet. This
Court is not satisfied on the state of affairs
that the petitioner was indeed served with
the
charge-sheet.
The
proceedings,
therefore, are again held to have been done
ex parte.

35. Assuming that the petitioner was
served with the charge-sheet and he did not
participate in the inquiry, it did not mean
that the respondents could just hold the
charges proved by looking into the chargesheet and the papers filed with it. If an
employee does not appear to answer the
charges against him, it is imperative for the
Inquiry Officer, holding a domestic inquiry,
which may lead to the imposition of a
major penalty, to convene a formal inquiry.
At the said inquiry, the establishment have
to prove the charges by leading their
evidence, both documentary and oral.
Witnesses have to be examined. The mere
fact that the delinquent employee is ex
parte would not absolve the establishment
of their responsibility to prove the charges
by leading evidence before the Inquiry
Officer through a Presenting Officer. Rule
64 of the Service Rules applicable to the
Corporation, quoted in Paragraph No.64 of
the writ petition, specifically supports the
said salutary procedure.
3 All. Dinesh Kumar Ojha Vs. The State of U.P. & Ors.
541

36. A reading of the inquiry report
dated 19.05.2023 submitted in this case by
Suhaib Anwar Ansari, respondent No.3,
shows that he just quoted the charge and
noted the fact that the petitioner though
attempted to be served, intimating him of
the date, did not file a reply. It is then
recorded that this Court had ordered the
petitioner to cooperate with the inquiry,
which he was disobeying. The findings,
that are then recorded, are based on idle
record in the Inquiry Officer's hands, that is
nothing more than the charge-sheet. The
inquiry report does not show that any
Presenting Officer led evidence on behalf
of the establishment, both oral and
documentary, to prove the charge. The
report also shows that the first charge alone
has been held proved in terms of the
following findings:

"मा० उच्च न्यायालय के उक्त आिेर्श में श्री ओझा
को िैनािी स्थल पर योगिान करने हेिु मा० उच्च न्यायालय द्वारा
आिेवर्शि वकया गया है, वजसके क्रम में श्री ओझा ने अपने पत्र
विनाांक 07.04.2014 द्वारा यह अवगि कराया है वक वह विनाांक
31.03.2014 को वबकी केन्र वलण्डसे स्ट्रीट कोलकािा गये थे
लेवकन वहााँ न िो वबक्री केन्र है और न कोई स्टाफ है, मैं अपना
योगिान कहााँ और वकसको िूाँ। श्री विनेर्श कुमार ओझा द्वारा अपने
वनयांत्रक अविकारी, श्री मो० सईि अांसारी, प्रभारी ववपणन पररक्षेत्र,
कोलकािा को भी कोई सूचना नहीं िी गई न ही वनयांत्रक अविकारी
के माध्यम से कोई अवकार्श आवि का आवेिन ही मुख्यालय
अग्रसाररि कराया गया। इससे स्पष्ट है वक श्री ओझा द्वारा
अनुर्शासनहीनिा िथा प्रबन्ि वनिेर्शक के आिेर्शों की अवहेलना की
गई।"

37. The crux of the findings is that the
petitioner did not report at the Sales Centre
located at Lindsey Street, Kolkata, and as
he says not finding it there, he did not
contact his Controlling Officer, Mohd.
Sayeed Ansari, In-charge Distribution,
Kolkata
Region,
giving
him
that
information
or
submitting
a
leave
application etc. through him. The charge of
indiscipline
and
disobedience
to
the
Managing Director's order has been held
proved. Now, the petitioner has clearly
alleged in Paragraph No.32 of the writ
petition that to say that he did not contact
the In-charge Marketing, Kolkata, Mr.
Mohd. Sayeed Ansari, is incorrect. The
petitioner in his letters dated 31.03.2014
and 07.04.2014 has said that at the Lindsey
Street,
Kolkata,
the
office
of
the
Corporation was not in existence. There
was, thus, no question of contacting any
official of the Corporation.

38. It is not possible for this Court to
go into the issue if in fact the Lindsey
Street Sale Centre of the Corporation no
longer exists or the petitioner did not find
Mohd. Sayeed Ansari there to contact as he
says, there being no office of the
Corporation around. But, the Inquiry
Officer, in order to probe the said issue and
return a valid finding, had to examine not
only idle papers, but witnesses as well. This
is a case where in the counter affidavit filed
on behalf of respondent Nos.2 and 3, it is
averred in Paragraph Nos.61 and 62:

"61. That the contents of the
paragraph no. 32 of the writ petition are
wrong and denied, in reply it is stated that
the petitioner has never contacted any
officer of the Corporation he had only
written letter to the officers. It is pertinent
to mention here that Sri Mohd. Sayeed
Ansari himself had written a letter to the
Head
Quarters
on
dated
05.11.2011
explaining about the irregularities found by
him while he inspected the showroom. A
copy of the letter dated 05.11.2011 is being
annexed
herewith
and
marked
as
ANNEXURE NO. CA 09 to the affidavit.

62. That it is pertinent to mention
here that the Inquiry Officer Sri Sohaib
Anwar Ansari called through cell phone to
542 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Ansari on his number 7753977122 on
dated 06.05.2023 for his statement he
refused to participate in the inquiry having
no option left the inquiry officer wrote a
letter to Sri Mohd. Sayeed Ansari for his
statement in the proceedings of the inquiry
through letter dated 09.05.2023 which was
return to the Corporation undelivered. A
copy of the letter dated 09.05.2023
alongwith Postal Receipt and envelop are
annexed
herewith
and
marked
as
ANNEURE NO. CA 10 to this affidavit."

39. The above averments show that
Mohd. Sayeed Ansari, who would be the
best person to show, if in fact the Lindsey
Street Office was in existence when the
petitioner went there to join, and, more
particularly, if he was around, where he
could be contacted by the petitioner, has
refused to testify on behalf of the
Corporation before the Inquiry Officer. The
findings of the Inquiry Officer in the
absence
of
Mohd.
Sayeed
Ansari's
testimony, which he himself called, but was
not successful in securing, would make the
charge fail utterly. The finding returned by
the Inquiry Officer, on the foot of which the
impugned order has been passed, would be
sans any material.

40. The principle that in an
inquiry likely to lead to the imposition of a
major penalty, it is imperative for a salutary
principle that the establishment lead
evidence, both documentary and oral,
before the Inquiry Officer, first in order to
prove the charge, is far too well settled to
brook doubt. In this connection, reference
may be made to the holding of the Supreme
Court in State of Uttar Pradesh and
others v. Saroj Kumar Sinha, (2010) 2
SCC 772, where it is observed:

"27.