# Dr. Trihuti Kumar v. State of U.P. & Ors

- **Citation:** (2025) 6 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-06-10
- **Case number:** Writ - A No. 15771 of 2024
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-trihuti-kumar-v-state-of-u-p-ors-53560
- **Pages:** 10

## Headnote

A. Civil Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 - Disciplinary Proceedings - Burden of Proof:
In major penalty inquiries, the establishment
must prove charges through documentary and
oral evidence, including witnesses, regardless of
the delinquent's participation. The inquiry officer
cannot presume guilt or rely solely
on
documents without witness testimony. Failure to
produce establishment witnesses vitiates the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry. St.of U.P. Vs Saroj Kumar Sinha, (2010)
2 SCC 772; Roop Singh Negi Vs Punjab National
Bank, (2009) 2 SCC 570; St.of Uttaranchal Vs
Kharak Singh, (2008) 8 SCC 236; Satyendra
Singh Vs St.of U.P., 2024 SCC OnLine SC 3325
(Paras 2, 6, 7).

B. Departmental Inquiry - Ex-Parte
Proceedings - Establishment's Duty: Even
if the delinquent absents, the establishment
must produce evidence, including witnesses,
at the scheduled inquiry to prove charges by
preponderant probability. Absence does not
lead
to
default
guilt;
ex-parte
inquiry
requires evidence presentation. St.of U.P. Vs
T.P. Lal Srivastava, (1996) 10 SCC 702
(Paras 12, 13).

C. Central Civil Services (Classification,
Control and Appeal) Rules, 1965 - Article
351-A - Procedural Fairness: Inquiry flawed by
requiring delinquent to produce and crossexamine
own
witnesses,
misunderstanding
examination-in-chief
and
cross-examination
principles. Establishment's failure to produce
witnesses invalidates findings of guilt. St.of U.P.
Vs Kishori Lal, 2018 (9) ADJ 397 (DB); Smt.
Karuna Jaiswal Vs St.of U.P., 2018 (9) ADJ 107
(DB); St.of U.P. Vs Aditya Prasad Srivastava,
2017 (2) ADJ 554 (DB) (Paras 2, 10, 11).

D. Judicial Review
-
Departmental
Inquiry - Persistent Procedural Flaws:
Despite prior court remand for fresh inquiry,
respondents' failure to follow legal principles
on evidence production warrants quashing of
punishment order. Courts may consider
penal costs or disciplinary action against
erring authorities for repeated breaches.
(Paras 15, 16).

Writ Petition Allowed.

List of Cases cited:

## Text

6 All. Dr. Trihuti Kumar Vs. State of U.P. & Ors.
115
discretionary relief being granted,
this Court in the case of Chennai
Metropolitan Water Supply & Sewerage
Board v. T.T. Murali Babu, (2014) 4 SCC
108 has held:

 "16. Thus, the doctrine of delay
and laches should not be lightly brushed
aside. A writ court is required to weigh the
explanation offered and the acceptability of
the same. The court should bear in mind
that it is exercising an extraordinary and
equitable jurisdiction. As a constitutional
court it has a duty to protect the rights of the
citizens but simultaneously it is to keep itself
alive to the primary principle that when an
aggrieved person, without adequate reason,
approaches the court at his own leisure or
pleasure, the court would be under legal
obligation to scrutinise whether the lis at a
belated stage should be entertained or not.
Be it noted, delay comes in the way of equity.
In certain circumstances delay and laches
may not be fatal but in most circumstances
inordinate delay would only invite disaster
for the litigant who knocks at the doors of the
court. Delay reflects inactivity and inaction
on the part of a litigant ? a litigant who has
forgotten
the
basic
norms,
namely,
"procrastination is the greatest thief of time"
and second, law does not permit one to sleep
and rise like a phoenix. Delay does bring in
hazard and causes injury to the lis."

13. Having considered aforesaid,
this Court finds that in the instant case no
interference is required. It is for the
following reasons:-

 (i) Laches of 363 days in
approaching this Court has not been
explained.

 (ii)
Allegations
of
misappropriation are against the then SPM,
Blunt Square Post Office and not against
Govind Narayan Mishra/opposite party and
therefore, to the view of this order to
recover Rs. 20,000/- from Govind Narain
Mishra/opposite party at the verge of
retirement is unsustainable.

 (iii) The finding of the Tribunal
which is to the effect that proper
opportunity of hearing was not given to
Govind Narain Mishra/opposite party has
not been impeached.

14.
Accordingly,
the
present
petition is dismissed.

15. Cost made easy.
----------
(2025) 6 ILRA 115
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.06.2025

BEFORE

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

Writ - A No. 15771 of 2024

Dr. Trihuti Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Rai

Counsel for the Respondent:
Avneesh Tripathi, C.S.C., M.N. singh

A. Civil Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 - Disciplinary Proceedings - Burden of Proof:
In major penalty inquiries, the establishment
must prove charges through documentary and
oral evidence, including witnesses, regardless of
the delinquent's participation. The inquiry officer
cannot presume guilt or rely solely
on
documents without witness testimony. Failure to
produce establishment witnesses vitiates the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry. St.of U.P. Vs Saroj Kumar Sinha, (2010)
2 SCC 772; Roop Singh Negi Vs Punjab National
Bank, (2009) 2 SCC 570; St.of Uttaranchal Vs
Kharak Singh, (2008) 8 SCC 236; Satyendra
Singh Vs St.of U.P., 2024 SCC OnLine SC 3325
(Paras 2, 6, 7).

B. Departmental Inquiry - Ex-Parte
Proceedings - Establishment's Duty: Even
if the delinquent absents, the establishment
must produce evidence, including witnesses,
at the scheduled inquiry to prove charges by
preponderant probability. Absence does not
lead
to
default
guilt;
ex-parte
inquiry
requires evidence presentation. St.of U.P. Vs
T.P. Lal Srivastava, (1996) 10 SCC 702
(Paras 12, 13).

C. Central Civil Services (Classification,
Control and Appeal) Rules, 1965 - Article
351-A - Procedural Fairness: Inquiry flawed by
requiring delinquent to produce and crossexamine
own
witnesses,
misunderstanding
examination-in-chief
and
cross-examination
principles. Establishment's failure to produce
witnesses invalidates findings of guilt. St.of U.P.
Vs Kishori Lal, 2018 (9) ADJ 397 (DB); Smt.
Karuna Jaiswal Vs St.of U.P., 2018 (9) ADJ 107
(DB); St.of U.P. Vs Aditya Prasad Srivastava,
2017 (2) ADJ 554 (DB) (Paras 2, 10, 11).

D. Judicial Review
-
Departmental
Inquiry - Persistent Procedural Flaws:
Despite prior court remand for fresh inquiry,
respondents' failure to follow legal principles
on evidence production warrants quashing of
punishment order. Courts may consider
penal costs or disciplinary action against
erring authorities for repeated breaches.
(Paras 15, 16).

Writ Petition Allowed.

List of Cases cited:

1. St. of U.P. Vs Saroj Kumar Sinha, (2010) 2
SCC 772 (Para 2).

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

3. St. of Uttaranchal Vs Kharak Singh, (2008) 8
SCC 236 (Para 2).
4. St. of U.P. Vs Kishori Lal, 2018 (9) ADJ 397
(DB) (Para 2).

5. Smt. Karuna Jaiswal Vs St. of U.P., 2018 (9)
ADJ 107 (DB) (Para 2).

6. St. of U.P. Vs Aditya Prasad Srivastava, 2017
(2) ADJ 554 (DB) (Para 2).

7. Satyendra Singh Vs St.of U.P., 2024 SCC
OnLine SC 3325 (Para 2).

8. St. of U.P. Vs T.P. Lal Srivastava, (1996) 10
SCC 702 (Para 12).

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

1. Heard Mr. Rajendra Rai, learned
Counsel for the petitioner, Mr. Avneesh
Tripathi, learned Counsel appearing for
respondent No. 5 and the learned Standing
Counsel appearing on behalf of respondents
Nos.1 to 4.

2.
It
has
been
repeatedly
emphasized by the Supreme Court and this
Court, not in one judgment but successive
authorities, that the law for a salutary
principle is that in departmental inquiries,
involving the imposition of a major
penalty, it is essential for the establishment
to examine witnesses and prove the charge,
even if the delinquent does not appear or
defend himself. If he does, he has the right
to
cross-examine
witnesses
for
the
establishment. The delinquent may produce
evidence in his defence or not, but that does
not absolve the establishment of their
liability to produce not only documentary
evidence, but witnesses to establish by the
standard of preponderant probability the
charge(s) against the delinquent, facing
disciplinary proceedings. This by far is the
law enunciated by the Supreme Court in
State of Uttar Pradesh and others v.
Saroj Kumar Sinha, (2010) 2 SCC 772,
Roop Singh Negi v. Punjab National
6 All. Dr. Trihuti Kumar Vs. State of U.P. & Ors.
117
Bank and others, (2009) 2 SCC 570 and
State of Uttaranchal and others v.
Kharak Singh, (2008) 8 SCC 236 and the
Bench decisions of this Court in State of
U.P. and another v. Kishori Lal and
another, 2018 (9) ADJ 397 (DB) (LB),
Smt. Karuna Jaiswal v. State of U.P.,
2018 (9) ADJ 107 (DB) (LB) and State of
U.P. v. Aditya Prasad Srivastava and
another, 2017 (2) ADJ 554 (DB) (LB).
This position of the law has been reiterated
as recently as in Satyendra Singh v. State
of U.P. and another, 2024 SCC OnLine
SC 3325.

3. Dr. Trihuti Kumar was an
Assistant Director (Fisheries) in the employ
of
the
State
Government.
He
was
suspended pending inquiry on 11.10.2006
and disciplinary proceedings instituted
against him. The order of suspension was
revoked on 11.12.2006, but the disciplinary
proceedings continued. The petitioner was
served with a charge-sheet on 25.10.2007,
the charge-sheet being a document dated
18.10.2007. The petitioner submitted his
reply on 07.04.2008. The petitioner was
hardly given any opportunity to defend
himself and an inquiry report dated
21.10.2008 was submitted. On the basis of
the inquiry report, on 12.12.2024, the
following punishment was awarded to the
petitioner by the State Government, to wit,
(i) withholding of integrity, (ii) reversion to
the basic grade of the post of Assistant
Director (Fisheries), and (iii) recovery of a
sum of Rs.23,145/-.

4. The petitioner challenged the
aforesaid order before this Court by means
of Writ-A No.21325 of 2015. The writ
petition was allowed by a Division Bench
of this Court vide judgment and order dated
23.04.2015, setting aside the order dated
12.12.2014, but leaving the respondents
free to pursue departmental proceedings
against the petitioner from the stage of the
charge-sheet and the petitioner's reply. One
of the flaws that the Division Bench
noticed in the earlier departmental inquiry
was that no date, time and place for holding
the inquiry was scheduled and intimated to
the petitioner. The Court also said with
reference to authority, particularly, that in
State of Uttaranchal v. Kharak Singh,
2008 (118) FLR 1112, that it was for the
establishment to prove the charges, where
the employer should take steps first to lead
evidence against the workman and then
give opportunity to him to cross-examine
witnesses produced for the establishment.

5. Notwithstanding the order of
remand and a fresh opportunity given to the
respondents by the Division Bench, the
respondents do not seem to have realized
their folly. Rather, they have persisted with
it. They have undertaken a fresh inquiry,
where they have redeemed the procedural
flaw, but in half measure; not by the
requisite standard, so much so that a
fundamental flaw vitiating the procedure,
by which the inquiry has been held, is still
there. That we will presently show.

6. We have carefully gone through
the original records of the inquiry, that was
resumed after remand by this Court vide
order dated 23.04.2015 passed in Writ-A
No.21325 of 2015 and find that the
respondents
have
indeed
given
the
petitioner ample opportunity in the sense
that they have intimated him of the date,
time and place fixed for holding the
inquiry, more than once and more than was
necessary. We make it bold to say that the
petitioner, in consequence, has been on a
long rope in the matter of opportunity to
participate in the inquiry and defend
himself. We have noticed in the record
118 INDIAN LAW REPORTS ALLAHABAD SERIES
repeat communications by the inquiry
officer, asking the petitioner to appear and
defend himself, including availing the
facility of cross-examining witnesses. But,
the question is whose witnesses? The
authorities, that we have referred to in the
opening paragraph of this judgment, lay
down for a salutary principle and that is the
requirement of Rule 7 of the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 as well, that in any
case, where a major penalty may be
imposed,
it
is
the
burden
of
the
establishment to prove the charges brought
against the delinquent. This means that in
the first instance, the establishment not
only
have
to
produce
documentary
evidence in support of the charges, but also
oral evidence, which refers to witnesses. It
is the testimony of witnesses produced
before an impartial inquiry officer through
the agency of a presenting officer that
imbues life into documents, turning them
from idle material into speaking evidence.
Much evidence comes from the oral
testimony of witnesses. In the absence of
witnesses, testifying in support of the
charges, the documents are but mute papers
and inferences of his own cannot be drawn
by
the
inquiry
officer
from
these
documents. The inquiry officer cannot
identify himself with the establishment,
even if he is their employee. He must act as
an impartial arbiter and cannot start with a
presumption of guilt against the employee/
delinquent, but one of innocence. The story
of guilt has to be written by the
establishment, producing both documentary
and oral evidence, particularly oral, in a
major penalty matter.

7. The witnesses, apart from
documentary evidence, who would have to
be produced on behalf of the establishment,
have to be their witnesses. And, then it
does not matter, whether the delinquent
appears at the scheduled date, time and
venue of inquiry; or he does not. The
obligation of the establishment is to
produce their evidence, after intimation of
the date, time and place of inquiry to the
delinquent, but it is not that on the date,
time and place of inquiry, the inquiry
officer can sit with an approach that the
charges are proof of themselves, and it is
for the delinquent to call witnesses in
defence; and, then in some way by their
evidence dispel the charges. It is for the
establishment to prove the charges by
producing their witnesses, apart from
documentary
evidence.
Even
if
the
delinquent
does
not
participate,
the
obligation of the establishment to prove the
charges by evidence aliunde, which must
include oral evidence, that is to say, the
testimony of witnesses is a sine qua non for
the proof of charges in a major penalty, as a
matter of salutary principle.

8. The approach in a case, where
the delinquent does not appear, as the case
here, which seems to be the aggressive
stance of the Principal Secretary, placed
before us through his personal affidavit,
much in ignorance of the law, would not
lead to proof of the charges against the
petitioner. The conduct of the petitioner, in
not participating in the inquiry, is certainly
not appreciable. To that extent, the
Principal Secretary, in the stand that he has
taken in his personal affidavit, is right that
despite multiple dates being scheduled and
intimated to the petitioner for holding
departmental proceedings, he did not
appear. But, the Principal Secretary is
shockingly wrong in his understanding of
the law when he says that the petitioner
was at flaw in not appearing at the inquiry
and cross-examining witnesses proposed by
him (a reference to the petitioner). K.
6 All. Dr. Trihuti Kumar Vs. State of U.P. & Ors.
119
Ravinder
Naik,
Principal
Secretary
(Fisheries), Government of U.P., Lucknow
does not seem to have the slightest of idea
about
what
'examination-in-chief'
and
'cross-examination' mean. It would be
horrendous to any trained legal mind to
think or even one having the slightest
acquaintance with the law that one could
cross-examine his own witnesses.

9. A party leads the evidence of his
own witnesses in the examination-in-chief
and cross-examines witnesses produced by
the other side. The Principal Secretary,
across the length and breadth of the
affidavit, has blamed the petitioner for not
producing his own witnesses and crossexamining them. This is an unpardonable
breach
in
the understanding of
the
fundamentals of a departmental inquiry,
which the Principal Secretary has exhibited
before this Court on quite an aggressive
note of complaint against the petitioner's
absenteeism during inquiry. We would
shortly
deal
with
the
question
of
absenteeism as well, where the Principal
Secretary is right about the complaint, but
not the course of action adopted. To
elucidate and exemplify the flaw in the
approach of the respondents, speaking
through the Principal Secretary's personal
affidavit, which is effectively the counter
affidavit filed in this case, we would refer
to some of the paragraphs, where the
Principal Secretary's understanding of the
law in regard to proof of charges against a
delinquent at the inquiry by examining
witnesses, is indicated:

 "16. That during the inquiry
conducted by the Inquiry Officer, Dr.
Kedar Nath, the then Deputy Director,
Fisheries, Headquarters, Dr. T. Kumar was
directed to be present for hearing and crossexamination of the witnesses proposed by
him, but he remained absent on most of the
occasions on one pretext or the other,
which
prima
facie
shows
his
noncooperative attitude in the inquiry and his
intention to deliberately delay the case.

 18. That through the letter dated
16.08.2019 of the Inquiry Officer Dr.
Kedar Nath, Deputy Director, Fisheries
(Fisheries) informed the petitioner Dr. T.
Kumar that out of the witnesses proposed
by him for charges number 01, 06 & 07,
Shri K. W. Warsi was never posted as
Deputy Director Varanasi. A witness
named Shri R. B. Verma has never been a
Deputy
Director
in
the
Fisheries
Department. The petitioner's demand to call
the above mentioned witnesses for crossexamination in respect of charges number
01, 06 and 07 was not found justified by
the Inquiry Officer.

 19. That in the context of
testimony/cross examination of witnesses,
Dr. T. Kumar has been informed that the
witness Shri Shankar Lal, Senior Clerk
(Retd.) vide his letter dated 02.08.2019 has
informed the former Inquiry Officer that it
was informed that he is sick and is unable
to walk/hear and and he is see, so he has
nothing to say in the said case and he is
unable to come and go. The witness
proposed by the petitioner T. Kumar, Shri
Brijesh Kumar Singh, Assistant Statistical
Officer, Agra, through his letter dated
03.08.2019, informed the Deputy Director,
Fisheries, Agra that from the date of his
appointment till now his posting is in the
Divisional Office, Agra, he was not posted
under Dr. T Kumar in the Districts of
Aligarh and Hathras, due to which he has
no connection with the matter in question.

 20. That the Inquiry Officer has
informed Dr. T. Kumar that the name and
120 INDIAN LAW REPORTS ALLAHABAD SERIES
address of another witness proposed by
him. Mr. Aslam, firm owner Aligarh, was
not given correctly. On an inquiry, it was
found that the place of Mr. Aslam belongs
to Mr. Rashid, Fish Aquarium 25/1 Khirni,
Aligarh Gate. The aforementioned firm was
enquired by the Deputy Director, Agra, by
letter dated 20.09.2019 of the Deputy
Director, Agra, the Inquiry Officer, Deputy
Director, Fisheries (Headquarters) was
informed that the said firm or any shop was
not found on the spot. The information
about the sudden death of Mr. Lal Singh,
retired fisherman, who was included in the
list of witnesses in the month of July, 2018,
was given to the former Inquiry Officer by
letter dated 29.05.2019, Deputy Director,
Fisheries Aligarh, Division.

 21. That on 27-6-2019 and 05-92019, a witness Shri Hakim Ali, Vehicle
Driver, Aligarh, Shri Ram Swaroop, Senior
Fisheries Inspector, Orai, Shri Nazir Khan,
Fisheries Inspector, Mahoba, retired and
again on 20-8-2019 Shri Ram Swaroop,
Senior Fisheries Inspector, Orai appeared
for cross-examination but despite the
information of the petitioner Dr. T. Kumar,
he did not appear. The cross-examination
of witnesses was conducted by the former
investigating officer on 12.06.2019 in front
of
the
petitioner,
in
which
written
statements of Shri N.P. Singh, Fisheries
Inspector, Shri Akhilesh Sharma, Vehicle
Incharge/ Fisheries Development Officer,
Aligarh were taken.

 22. That in the course of request
for cross-examination of witnesses of the
petitioner Dr. T. Kumar by letter dated
03.12.2021 of Dr. Saroj Kumar, Special
Secretary/ inquiry Officer, the petitioner
was apprised of the above-mentioned
developments and was informed that
serious and important efforts were made by
the former inquiry officer for cross
examination of his proposed witnesses and
they were also given ample opportunities to
present their side and evidence, but they
did not provide full cooperation to the
investigating officer and did not show
seriousness towards cross-examination by
remaining absent on most occasions. The
list and names of witnesses have been
changed from time to time by the petitioner
and along with writing the names and
addresses of some witnesses unclearly,
cross-examination of some witnesses was
requested despite not being related to the
case. In respect of the witnesses proposed
by the petitioner and the request for crossexamination was made to the former
inquiry officer, diligent action and efforts
have been made. By the aforesaid letter of
the Inquiry Officer dated 03.12.2021, Dr.
T. Kumar was informed that he was not
cooperating with the previous Inquiry
Officer as well as the present Inquiry
Officer in the inquiry and efforts were
being made to keep the inquiry suspended
in one way or the other."

(emphasis by Court)

10. A reading of the paragraphs
from the Principal Secretary's affidavit
shockingly
reveal
that
the
Principal
Secretary himself does not understand the
essentials
of
holding
a departmental
inquiry. The affidavit does not show at all
whether any witnesses were produced by
the establishment to prove the charges
brought against the petitioner. There is not
the name of a solitary witness, which the
establishment produced to prove the
charges.
If
there
were
any,
the
establishment's witnesses would surely
have been produced without difficulty.
Instead, the paragraphs of the personal
affidavit unmistakably reveal that the
6 All. Dr. Trihuti Kumar Vs. State of U.P. & Ors.
121
establishment required the petitioner to
disclose the names of witnesses by whose
evidence he wanted to substantiate his
defence. The affidavit then indicates that
some of these witnesses said that they were
irrelevant or their addresses were wrong.
One said that he was sick and some did
appear, whom the petitioner did not crossexamine. It is indeed placing the cart before
the horse in the sense that the petitioner
was certainly not obliged to produce
witnesses in his defence before the
establishment produced evidence, including
witnesses, to prove the charges against the
petitioner.

11. It is not the petitioner, who has
to establish his innocence before the
inquiry
officer
by
leading
evidence,
documentary and oral. It is just the other
way round. It is the establishment, who
have to prove the petitioner's guilt, may be
by the standard of preponderant probability,
as already remarked. In doing that the
establishment would have to produce their
documentary evidence and witnesses one by
one, who, if the petitioner attended the
inquiry, could be cross-examined. Thereafter,
if the petitioner produced evidence in his
defence, regarding which time had to be
given to him, he could do that. If he did not
do
that,
it
would
not
absolve
the
establishment of their liability to produce
documentary evidence as well as witnesses to
prove
the
charges.
Here,
surely,
the
establishment did not produce any witness.
All they speak about are the witnesses,
referred to by the petitioner in his defence.
Even if the said witnesses did not appear or
the petitioner did not produce them, it would
not establish the charges against the petitioner
by default, as if it were.

12. The repeat employment of the
expression that the petitioner did not crossexamine his witnesses is shocking. Indeed,
no
one
cross-examines
one's
own
witnesses. It is something unheard of by
any person having basic forensic training.
Here, this is precisely what the respondents
have done as the personal affidavit of the
Principal Secretary would show. He has
blamed the petitioner for not appearing at
the inquiry, which is true for a fact, but
how does that lead to proof of the charges
has not at all been explained. It has
nowhere been shown, who were the
witnesses produced on behalf of the
establishment to prove the charges. If a
delinquent is not appearing at the inquiry
on the scheduled date, time and place,
which in this case was indeed fixed and
intimated to the petitioner, the course of
action for the inquiry officer or the inquiry
committee, is enunciated by the Supreme
Court in State of U.P. and another v. T.P.
Lal Srivastava, (1996) 10 SCC 702, where
it has been held:

 "4. This appeal by special leave
arises from the judgment of the Allahabad
High Court made on 15-3-1993 in Writ
Petition No. 12480 of 1987. The admitted
position is that while the respondent was
working as a Senior Marketing Inspector, a
charge-sheet was served on him on 23-111984 calling upon him to explain the
charges for committing gross irregularities
in the movement of wheat outside the State
of U.P. Instead of submitting reply to the
charge-sheet, he went on dilly-dallying in
submitting
the
reply.
Several
letters
addressed
to
the
respondent
proved
ineffective. Resultantly, the appellants took
a decision on 26-6-1987 holding that the
respondent
was
found
guilty
of
misappropriation. Consequently, he came
to
be
dismissed
from
service.
The
respondent challenged the same in the writ
petition. The High Court has set aside the
122 INDIAN LAW REPORTS ALLAHABAD SERIES
order in the impugned order holding that
the documents have not been supplied to
the respondent and, therefore, the action
was vitiated by error of law. We do not find
any justification in the view taken by the
High Court; the substratum of the result is
that the appellants have not conducted any
enquiry though the respondent had been
avoiding to give the reply. Since the
respondent had avoided to submit the reply,
he has forgone his right to submit his reply.
Nonetheless,
the
appellants
are
not
absolved of the duty to hold an ex parte
enquiry to find out whether or not the
charge has been proved. In the event of the
Enquiry Officer finding that the charge is
proved, he would submit his report to the
disciplinary authority. The disciplinary
authority should communicate the copy of
the enquiry report to the respondent and
seek an explanation for the proposed action
thereon. If the respondent submits any
explanation, the same may be taken into
consideration and appropriate order may be
passed according to law. Until then, the
respondent must be deemed to be under
suspension."

(emphasis by Court)

13. It was the establishment's
burden to produce the evidence at the
appointed date, time and venue and if the
petitioner
absented,
as
the
Principal
Secretary amply shows by his affidavit - a
fact also established from the original
records,
the
respondents
ought
have
proceeded ex parte against the petitioner.
Ex parte inquiry would mean that the
respondents
would
have
to
produce
evidence before the inquiry officer on
behalf of the establishment through a
presenting officer on the scheduled date,
time and venue of inquiry. The absenting
petitioner would be deprived of his right of
cross-examining
the
establishment's
witnesses, and, of course, of leading his
own evidence in defence. But, it is not that,
that the absenting petitioner's conduct could
lead to a finding of guilt against him, based
on his default without the establishment
producing evidence to prove the charges.
The establishment's charges carried in the
charge-sheet do not come with an inherent
proof of themselves. They have to be
established before the inquiry officer by the
establishment producing evidence. This
apparently has not been done in this case.

14. We have perused the original
records of the inquiry that were summoned
in this case and across the length and
breadth of the record, we do not find that
the testimony of any establishment's
witness was recorded with the petitioner
remaining absent on the appointed date,
time and venue of inquiry. After all, that
was all what was required to be done in a
case like the present one, where indeed the
petitioner absented on the various dates
scheduled for the inquiry by the inquiry
officer, despite notice to him.

15. While parting with the matter,
we must remark that before criticizing the
Principal Secretary's understanding of the
law about inquiries, we have given him
adequate
opportunity
by
calling
his
personal affidavit, on the foot of which
alone, this writ petition has been heard. He
has disclosed his understanding of the law
and the fallacies, wherein we have pointed
out. The remarks of whatever kind there,
are therefore, not without opportunity to
him. The remarks are more necessitated
because there are not scores, but may be
thousands of departmental inquiries in this
State, the result whereof, including the
ensuing orders of punishment, have to be
nullified by the Court for the same
6 All. Dr. Trihuti Kumar Vs. State of U.P. & Ors.
123
fundamental flaw in the understanding of
the officers of the State as to how a
departmental inquiry is to be conducted. In
most of the inquiries, the Disciplinary
Authority and the Inquiry Officer regard
the charges proof of themselves because
they are officers of the establishment. In
their approach, they hardly ever require the
establishment to prove the charges. And,
for an opportunity, they call the delinquent,
asking him during personal hearings to
offer proof of his innocence, rather than
requiring the establishment to prove the
delinquent's guilt. This leads to an utter
wastage of public time and money,
particularly, of the Government and their
various establishments.

16. As this case would show, even
a remand by this Court to undertake the
inquiry afresh in accordance with law, after
referring to relevant authorities, did not
affect the single minded and determined
breach
of
salutary
procedure,
which
officers across various establishment of the
State commit in the holding of disciplinary
proceedings. There have been suggestions
in the past that officers of the State should
be
sent
for
training
how
to
hold
departmental inquiries. We do not think
that it would bear fruit. The reason is that
the plethora of authority in point, much of
which comes from the Supreme Court and
this Court, has not been followed by the
Government or their other establishments.
It is not on account of a mere lack of
understanding for the principles there that
are
not
really
very
complicated
to
understand and follow. The breach primarily
comes because of an idea to resist the
principle that the law is what the Court says it
is. We do not think that any kind of training
for the inquiry officers would serve any
purpose. They would have to be made to
adhere to the requirements of the law, that
has been laid down by the Supreme Court
and this Court in the holding of departmental
inquiries. If they do not, apart from
imposition of penal costs recoverable from
the Inquiry Officer and the Disciplinary
Authority, including the Appellate Authority,
disciplinary action might have to be
recommended to the Government against
such Authorities, who constantly observe the
law laid down by the Supreme Court and this
Court in breach. For the present, we are not
minded to do that.

17. In the result, this writ petition
succeeds and is allowed. The impugned
orders dated 16.05.2024 passed by the
Principal Secretary (Fisheries), Government
of U.P., Lucknow is hereby quashed. It will
be open to the respondents, if they so elect, to
proceed afresh against the petitioner in
accordance with Article 351-A of the Central
Civil Services (Classification, Control and
Appeal) Rules, 1965, holding an inquiry
bearing in mind the guidance in this
judgment; and if they find the petitioner
guilty, inflict a penalty permissible by law,
that is condign. However, the Government
shall not impose a penalty, if they take fresh
proceedings, which is higher than that carried
in the order impugned. The arrears of
withheld part of the pension shall be payable
to the petitioner, subject to event in the
disciplinary proceedings, if undertaken. If no
fresh disciplinary proceedings are elected to
be undertaken, the petitioner would be
entitled to the arrears of his reduced part of
pension together with 6% simple interest
from the date the reduced part of the pension
is payable.

18. There shall be no order as to
costs.

19. Let the records be returned to
the learned Standing Counsel forthwith for
124 INDIAN LAW REPORTS ALLAHABAD SERIES
their onward and safe transmission to the
respondents.

20. Let a copy of this order be
communicated to the Principal Secretary
(Fisheries), Government of U.P., Lucknow,
the Director (Fisheries), Directorate of
Fisheries, U.P., Lucknow, the Finance and
Accounts Officer, Directorate of Fisheries,
U.P., Lucknow and the Deputy Director
(Fisheries), Kanpur Division, Kanpur by
the Registrar (Compliance).
----------
(2025) 6 ILRA 124
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.06.2025

BEFORE

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

Writ - A No. 18453 of 2024

Rakesh Kumar Tyagi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sujeet Kumar Rai

Counsel for the Respondents:
C.S.C., Satyam Singh

A.
Service
Law
-
Constitution
of
India,1950 - Article 226 & 300A -
Payment of Gratuity Act,1972-Section
4(6)-U.P.
Cooperative
Societies
Employees
Service
Regulations,1975Regulations 84 and 96- withholding of
gratuity and dues-The petitioner , a
retired Senior Branch Manager of the
District
Cooperative
Bank
Limited
Ghaziabad challenged the withholding of
Rs. 19.25000 from his post retirement
benefits by the Bank-The amount was
retained due to loans he had sanctioned,
which
later
became
non-performing
assests(NPAs)-The court held that such
recovery was illegal in the absence of any
disciplinary
proceedings
or
criminal
conviction-Gratuity
and
post-retiral
benefits are protected u/s 4(6) of the
Act,1972
and
Article
300A
of
the
Constitution
-Recovery
from
such
benefits is impermissible unless services
were terminated for proven misconductAdministrative
decisions
or
internal
resolutions cannot override these legal
protections-Thus, Impugned orders and
resolution
quashed-Bank
directed
to
release withheld amount with interest.
(Para 22 to 35)

List of Cases cited:

1. U.P. Coop. Union & ors. Vs Prabhu Dayal
Srivastava & ors.(1988) SCC Online All 302

2. St. of Jhar. & ors. Vs Jitendra Kr. Srivastava &
anr.(2013) 12 SCC 210

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

1. The petitioner questions an order of
the Chief Executive Officer, District
Cooperative Bank Limited, Ghaziabad
dated 18.11.2024 and the resolution of the
Committee of Management of the said
Bank
dated
08.10.2024,
in
effect,
withholding a sum of Rs.19,25,500/- out of
his post retiral benefits on account of loan
disbursed by the petitioner, that have turned
into non-performing assets, allegedly due
to callous disbursement of those loans to
customers.

2. The petitioner retired from service
of the District Cooperative Bank Limited,
Ghaziabad (for short, 'the Bank') as a
Senior Branch Manager on 31.12.2022. He
entered service of the Bank as a Clerk-cumCashier on 12.07.1988, steadily earning his
promotions to the post of a Senior Branch
Manager that he held at the time of
retirement. It is the petitioner's case that he
had an unblemished service record. Upon