# Ghanshyam Das Varshney v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-20
- **Case number:** Service Bench No. 428 of 2006
- **Bench:** Rajes Kumar, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghanshyam-das-varshney-v-state-of-u-p-ors-43263
- **Pages:** 10

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.
U.P. Government Servangt (Discipline &
Appeal Rules 1999-Rule-7(iii)-Disciplinary
Proceeding-enquiry
officer
without
opportunity
of
oral
hearing-without
supplying
list
of
witness
alongwith
charges-in serious violation of procedure
prescribed under Rule-merely on basis of
verification report without examinationorder deduction of 25% pension-held-not
proper.
Held: Para-23
Lastly, we may emphasise that we are
alive to the legal proposition as argued
by learned Additional Standing Counsel
that this court cannot scrutinise the
matter in its writ jurisdiction as if it is
sitting
in
appeal.
We
are
of
the
considered
view
that
taking
into
consideration
a
preliminary
enquiry
during a regular enquiry and that too
without conducting any oral enquiry in
contravention of the prescribed Rules
would
be
a
mere
casual
exercise
violating also the rules of natural justice
envisaged under Article 311(2) of the
Constitution of India. Such an enquiry
report cannot be sustained in the eyes of
law. Resultantly, the impugned order of
punishment also deserves to be quashed.
Case Law discussed:
(2009) 5 Supreme Court Cases 545; (2010) 2
Supreme Court Cases 772; [2014(3) LBESR 94
(All.)]; [2013 (31) LCD 762].

## Text

1 All] Ghanshyam Das Varshney Vs. State of U.P. & Ors.
149
Government to consider their cases for
regularisation. We also notice that the
High Court has not adverted to the aspect
as to whether it was regularization or it
was giving permanency that was being
directed by the High Court. In such a
situation, the direction in that regard will
stand deleted and the appeals filed by the
State would stand allowed to that extent.
If sanctioned posts are vacant (they are
said to be vacant) the State will take
immediate steps for filling those posts by
a regular process of selection. But when
regular recruitment is undertaken, the
respondents in CAs Nos. 3595-612 and
those
in
the
Commercial
Taxes
Department similarly situated, will be
allowed to compete, waiving the age
restriction imposed for the recruitment
and giving some weightage for their
having been engaged for work in the
Department for a significant period of
time. That would be the extent of the
exercise of power by this Court under
Article 142 of the Constitution to do
justice to them.
30. We, therefore, do not see that any
law has been laid down in para 55 of the
judgement
in
Umadevi
(3)
case.
Directions were issued in view of the
limited controversy. As indicated, the
State's grievances were limited."
8. In a recent judgment of a Division
Bench of this Court in State of U.P. and
others Vs. Mahipal Singh and another8,
this position of law has been followed.
9. In this background and in view of
the clear position in law, it would not be
possible for this Court to accept the
contention of the appellants that they
should be allowed the minimum of the
pay scale merely on the basis of certain
directions which were issued in the past.
This Court must be governed by the
principle of law which has been laid down
in several judgments of the Supreme
Court noted above. As daily wage
employees, the appellants would be entitle
to receive minimum wages, as directed by
the learned Single Judge in the impugned
judgment. Their claim to receive salary
payable to regular employees of the
University at the minimum of the pay
scale would not be maintainable in law.
10. The University has observed that
the appellants were recruited without
following any procedure prescribed under
the law for recruitment. Moreover, the
University has also observed that it is
unable to bear the financial burden in the
absence of financial support from the State.
11. We see no reason to entertain the
special appeal since the judgment of the
learned Single Judge is in accordance
with the position in law as it now stands.
The special appeal is, accordingly,
dismissed. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2015
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE ASHOK PAL SINGH, J.
Service Bench No. 428 of 2006
Ghanshyam Das Varshney ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Hemendra Pratap
Counsel for the Respondents:
150
 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.
U.P. Government Servangt (Discipline &
Appeal Rules 1999-Rule-7(iii)-Disciplinary
Proceeding-enquiry
officer
without
opportunity
of
oral
hearing-without
supplying
list
of
witness
alongwith
charges-in serious violation of procedure
prescribed under Rule-merely on basis of
verification report without examinationorder deduction of 25% pension-held-not
proper.
Held: Para-23
Lastly, we may emphasise that we are
alive to the legal proposition as argued
by learned Additional Standing Counsel
that this court cannot scrutinise the
matter in its writ jurisdiction as if it is
sitting
in
appeal.
We
are
of
the
considered
view
that
taking
into
consideration
a
preliminary
enquiry
during a regular enquiry and that too
without conducting any oral enquiry in
contravention of the prescribed Rules
would
be
a
mere
casual
exercise
violating also the rules of natural justice
envisaged under Article 311(2) of the
Constitution of India. Such an enquiry
report cannot be sustained in the eyes of
law. Resultantly, the impugned order of
punishment also deserves to be quashed.
Case Law discussed:
(2009) 5 Supreme Court Cases 545; (2010) 2
Supreme Court Cases 772; [2014(3) LBESR 94
(All.)]; [2013 (31) LCD 762].
(Delivered by Hon'ble Ashok Pal Singh, J.)
1. Heard Sri Hemendra Pratap,
learned counsel for the petitioner, Smt.
Sangeeta Chandra, learned Additional
Chief Standing Counsel and perused the
record.
2. The petitioner has preferred the
instant writ petition challenging the order
dated 04-01-2006 passed by the State
Government imposing punishment of
reduction of his 25% pension permanently
during the departmental proceedings
taken up against him.
3. The petitioner was posted as an
Assistant
Engineer
(Mechanical)
Tubewell Division, Meerut (West) having
under his command area as many as 217
tubewells
of
district-Baghpat.
The
maintenance and running of the said
tubewells was being done under his
administrative
authority.
The
Chief
Engineer, Tubewell (West), Meerut vide
his order dated 17-09-2001 directed the
areawise task of 100% verification of the
aforesaid 217 tubewells to four of his
Executive Engineers and called upon
them to report as to whether the tubewells
so verified by them were found in running
state or not and in case, they were not
found in running state, the reasons
therefor.
4. Subsequently, on the basis of the
verification report received from the
aforesaid
Executive
Engineers,
a
disciplinary enquiry was initiated against
the petitioner for committing certain
irregularities in respect of the above
tubewells. A chargesheet dated 28-102002 was issued to the petitioner
containing as many as four charges. The
documentary evidence which was being
relied upon in support of the charges in
essence contained the verification report
of the tubewells submitted by the four
Executive
Engineers
to
the
Chief
Engineer and the order of Chief Engineer
thereon. The request of the petitioner for
the supply of the copies of said
documentary evidence was turned down
on the premise of said documentary
evidence being voluminous. However, the
petitioner was allowed to inspect the
record. It appears that after making the
1 All] Ghanshyam Das Varshney Vs. State of U.P. & Ors.
151
inspection, the petitioner submitted his
reply denying the charges levelled against
him.
5. Thereafter, the Enquiry Officer
without holding any oral enquiry, merely
on the basis of the reply given by the
petitioner and the aforesaid documentary
evidence arrived at the conclusion of the
charges to have been proved against the
petitioner and submitted his enquiry
report to the Disciplinary Authority i.e.
the State Government for further action.
The State Government, in turn, issued a
show cause notice dated 12-09-2003 to
the petitioner furnishing alongwith it to
him a copy of the enquiry report. In
response thereto, the petitioner submitted
his reply dated 28-12-2004. The petitioner
thereafter
attained
the
age
of
superannuation on 31-12-2004. According
to
the
respondents
after
obtaining
necessary permission under 351-A of
CSR impugned order imposing the
aforesaid punishment was passed by the
State Government.
6. It has been submitted by learned
counsel for the petitioner that a fair and
reasonable opportunity to defend his case
was not provided to the petitioner in as
much as no date, time or place was fixed
by the Enquiry Officer to proceed with
the enquiry after submission of his reply
to the chargesheet nor the same was ever
intimated to him. No enquiry including
any oral enquiry was also held by the
Enquiry
Officer.
Neither
any
oral
evidence of any witness was recorded nor
any opportunity for making any crossexamination with any such witness was
provided to him. In fact, no list of witness
at all was provided by the department to
the
Enquiry
Officer
proposing
any
witness to be examined in order to prove
the
documentary
evidence.
The
conclusions drawn by the Enquiry Officer
were merely on the basis of the charges
levelled and the explanation provided by
the petitioner.
7. It has also been submitted on
behalf of the petitioner that burden of
proving
the
charges
was
on
the
department, but, the Enquiry Officer
shifted the burden of proving the negative
upon the petitioner. The enquiry, thus,
conducted by the Enquiry Officer, was no
enquiry in the eyes of law and the
impugned order passed on the basis of
such an enquiry deserves to be set aside.
8. Per contra, Smt. Sangeeta
Chandra,
learned
Additional
Chief
Standing
Counsel
representing
the
respondents, has submitted that a fair
opportunity of hearing was provided to
the petitioner by the Enquiry Officer.
Attention of the court has been invited by
her towards the directions given in the
chargesheet served upon the petitioner,
requiring the petitioner to submit his
explanation on or before 20-11-2004. The
petitioner was further required therein to
inform as to whether he wanted personal
hearing and to get oral statement of any
witness recorded and in case, he wanted
to examine or cross-examine any witness,
then to provide with his written reply, the
names and addresses of such witnesses
and also to provide a brief note indicating
the points on which such examination or
cross- examination of the witnesses was
intended. It was also mentioned in the
chargesheet that if no explanation was
submitted within the time stipulated, then
it would be deemed that the petitioner had
nothing to say in respect of the charges
and orders in the enquiry would be passed
accordingly.
152
 INDIAN LAW REPORTS ALLAHABAD SERIES
9. It has been submitted by the
learned
Additional
Chief
Standing
Counsel
that
despite
the
aforesaid
directions in the charge sheet and a
reminder given, the petitioner failed to
submit before the Enquiry Officer as to if
he wanted any personal hearing. He also
failed to provide the list of persons to
whom he wanted to examine or crossexamine with a brief note indicating the
points on which such examination or
cross-examination was
intended. The
learned
Additional
Chief
Standing
Counsel, further submitted that the facts
disclosed in the documentary report of the
Executive
Engineers
regarding
verification of the tubewells had not been
denied by the petitioner because of which
the Enquiry Officer did not consider for
recording any oral evidence and drawn his
conclusions on the basis of the enquiry
report
submitted
by
the
Executive
Engineers and the reply to the chargesheet
submitted by the petitioner. According to
learned
Additional
Chief
Standing
Counsel, strict rules of evidence are not
applicable to the departmental enquiries
as applicable in criminal cases. Such
enquiries are to be decided on the basis of
preponderance of evidence. Her further
submission is that under the writ
jurisdiction this court is not required to
appreciate and decide the matter as if
sitting in appeal. The conclusions drawn
by the Enquiry Officer are based upon the
documentary evidence as well as the facts
admitted by the petitioner. The impugned
order passed in consequence thereof by
the State Government thus needs no
interference.
10. According to the learned
counsels for the parties, U.P. Government
Servant(Discipline and Appeal) Rules,
1999 (hereinafter referred to as "the
rules") governs the field in the instant
case for conducting enquiry and imposing
a major penalty on a government servant.
Rule 7 of the aforesaid Rules which deals
with enquiry procedure reads as under:-
7. Procedure for imposing major
penalties - Before imposing any major
penalty on a Government servant, an
inquiry shall be held in the following
manner :
(i) The disciplinary authority may
himself inquire into the charges or
appoint an authority subordinate to him
as Inquiry Officer to inquire into the
charges.
(ii)
The
facts
constituting
the
misconduct on which it is proposed to
take action shall be reduced in the form of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the disciplinary authority :
Provided that where the appointing
authority is Governor, the charge-sheet
may be approved by the Principal
Secretary or the Secretary; as the case
may be, of the concerned department.
(iii) The charges framed shall be so
precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidence and the name of the witnesses
proposed to prove the same alongwith
oral evidence, if any, shall be mentioned
in the charge-sheet.
(iv) The charged Government servant
shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in
the charge-sheet and whether desires to
give or produce evidence in his defence.
1 All] Ghanshyam Das Varshney Vs. State of U.P. & Ors.
153
He shall also be informed that in case he
does not appear or file the written
statement on the specified date, it will be
presumed that he has none to furnish and
Inquiry Officer shall proceed to complete
the inquiry ex-parte.
(v) The charge-sheet, alongwith the
copy of the documentary evidences
mentioned therein and list of witnesses
and their statements, if any shall be
served on the charged Government
servants personally or by registered post
at the address mentioned in the official
records. In case the charge-sheet could
not be served in aforesaid manner, the
charge-sheet
shall
be
served
by
publication in a daily newspaper having
wide circulation:
Provided
that
where
the
documentary evidence is voluminous,
instead of furnishing its copy with chargesheet, the charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.
(vi) Where the charged Government
servant appears and admits the charges,
the Inquiry Officer shall submit his report
to the disciplinary authority on the basis
of such admission.
(vii) Where the charged Government
servant denies the charges the inquiry
officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in presence of the
charged Government servant who shall be
given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call
and record the oral evidence which the
charged Government servant desired in
his written statement to be produced in
his defence."
Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.
(viii) The Inquiry Officer may
summon any witness to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production
of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any
question he pleases, at any time of any
witness or from person charged with a
view to discover the truth or to obtain
proper proof of facts relevant to charges.
(x) Where the charged Government
servant does not appear on the date fixed
in the inquiry or at any state of the
proceeding in spite of the service of the
notice on him or having knowledge of the
date, the Inquiry Offi9cer shall proceed
with the inquiry ex parte. In such a case
the Inquiry Officer shall record the
statement of witnesses mentioned in the
charge-sheet in absence of the charged
Government servant.
(xi) The disciplinary authority, if it
considers it necessary to do so, may, by
an order appoint a Government servant
or a legal practitioner, to be know as
"Presenting Officer" to present on its
behalf the case in support of the charge.
(xii) The Government servant may
take
the
assistance
of
any
other
Government servant to present the case
on his behalf but not engage a legal
practitioner for the purpose unless the
Presenting Officer appointed by the
disciplinary
authority
is
a
legal
practitioner of the disciplinary authority
having regard to the circumstances of the
case so permits :
Provided that this rule shall not
apply in following cases :
(i) Where any major penalty is
imposed on a person on the ground of
154
 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct which has led to his conviction
on a criminal charge ; or
(ii) Where the disciplinary authority
is satisfied that for reason to be recorded
by it in writing, that it is not reasonably
practicable to hold an inquiry in the
manner provided in these rules; or
(iii) Where the Governor is satisfied
that, in the interest of security of the State,
it is not expedient to hold an inquiry in
the manner provided in these rules."
11. It is clear from Rule 7(iii) that
the proposed documentary evidence and
the names of witnesses proposed to prove
the charges are to be mentioned in the
charge sheet. But what we find from the
perusal of the chargesheet in the instant
case is that in order to prove all the
charges certain documentary
evidence
was proposed to be relied upon. For
charge nos. 1 to 3 it was in essence either
the order of the Chief Engineer dated 179-2001 by which four of his Executive
Engineers were directed to carry out
100% verification of tubewells in the
command area of the petitioner and/or the
verification reports or one or more of the
various annexures submitted by them with
said verification reports. As regards
charge no. 4 proposed reliance in essence
was upon a letter dated 22-10-2001 of
Finance Controller by which certain
budget was allocated and CCL inputs of
the months of September and October,
2001. However, it is observed that no
witness at all has been proposed in the
chargesheet for proving any of the
aforesaid documents.
12. A perusal of the enquiry report
ipso facto reveals that in his reply to the
chargesheet the petitioner had not only
denied the charges but had also denied the
verification reports to be correct and in
accordance with the spot position. The
reply to show cause notice given by the
petitioner to the disciplinary authority,
copy of which is annexure 6 to the
petition also reveals that in it also he had
reiterated his denial. We are thus unable
to accept the contention of learned
Additional Chief Standing Counsel that
since the imputing facts had not been
denied by the petitioner there was no
necessity for the Enquiry Officer to record
any oral evidence. In our opinion it was
clearly not a case covered by the
provisions of Rule 7 (vi) of the Rules.
Instead it was a case covered by the
provisions of Rule 7(vii) of the Rules
wherein the Enquiry Officer in view of
the denial of charges was under a
statutory
obligation
to
record
oral
evidence of the witnesses to whom the
department proposed to summon in order
to prove the documentary evidence relied
upon by it.
13. Even if a delinquent employee
does not request for personal hearing, the
burden of proving charges is upon the
department. Under the rules, it is
obligatory for the Enquiry Officer to fix a
date for such an enquiry and also to
inform about the same to the delinquent
employee. The Enquiry Officer is also
under statutory obligation to examine the
documentary as well as oral evidence, if
any, adduced in support of the charges. In
case, the delinquent employee does not
participate in the enquiry, even then, the
Enquiry Officer is under statutory duty to
discharge his obligation as an Enquiry
Officer to ascertain the truth in respect of
the charges levelled against the delinquent
employee on the basis of the evidence and
to come to the conclusion as to whether
the said charges are proved against the
delinquent employee or not. Even if the
1 All] Ghanshyam Das Varshney Vs. State of U.P. & Ors.
155
delinquent employee has not demanded
the opportunity of personal hearing or
does not give the list of names of the
witnesses with a brief note indicating the
points on which he desires to examine or
cross-examine the witnesses, the Enquiry
Officer is still statutory bound to fix a
date of enquiry and to intimate the said
date to the delinquent employee and in
case, the delinquent employee does not
appear on the date fixed or moves an
application for adjournment, the Enquiry
Officer may, in his discretion, either
adjourn the enquiry to some other date or
to proceed ex-parte against the delinquent
employee.
14. In Nair Service Society Vs. Dr.
T. Beermasthan (2009) 5 Supreme Court
Cases 545 relied upon by the petitioner,
their lordships of Hon'ble Supreme Court,
in para 48 of the report, held as under:
"48. Several decisions have been
cited before us by the respondents, but it
is well established that judgments in
service
jurisprudence
should
be
understood
with
reference
to
the
particular service rules in the State
governing that field..........."
15. In State of Uttar Pradesh and
Others Versus Saroj Kumar Sinha (2010)
2 Supreme Court Cases 772, also relied
upon by the petitioner, their lordships of
Hon'ble Supreme Court in para nos. 27,
28, 29 and 30 of the report, while
discussing the statutory responsibility of
an Enquiry Officer conducting an enquiry
and the rule of natural justice affording a
reasonable opportunity to the delinquent,
held as under:
"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
that the charges are provided. In the
present case the aforesaid procedure has
not been observed. Sine no oral evidence
has been examined the documents have
not been proved, and could not have been
taken into consideration to conclude that
the charges have been proved against the
respondents.
29. Apart from the above, by virtue
of Article 311 (2) of the Constitution of
India the departmental enquiry had to be
conducted in accordance with the rules of
natural justice. It is a basic requirement
of the rules of natural justice that an
employee
be
given
a
reasonable
156
 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of being heard in any
proceedings which may culminate in
punishment
being
imposed
on
the
employee.
30. When a department enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The
inquiry officer has to be wholly unbiased.
The rules of natural justice are required
to be observed to ensure not only that
justice is done but is manifestly seen to be
done. The object of rules of natural justice
is to ensure that a government servant is
treated fairly in proceedings which may
culminate in imposition of punishment
including
dismissal/
removal
from
service."
16. In Kaptan Singh Versus State of
U.P. & Another [2014(3) LBESR 94
(All.)], yet another decision relied upon
by the petitioner in which facts were very
closely similar to the present case a
Division Bench of this court has held that
even where the delinquent employee does
not
dispute
the
veracity
of
the
documentary evidence, oral enquiry is
necessary as he may still have an
explanation to offer.
17. In the present case not only a
serious
violation
of
the
procedure
prescribed by the rules has been made but
the documentary evidence of verification
report relied upon by the department has
illegally been taken to be proved without
any departmental witness having been
examined in support thereof and that too
when on the face of the record the factual
matrix stated in the said verification
report had not been admitted by the
petitioner to be in accordance with the
spot position. In the absence of any oral
evidence, the documents remained not
proved, and as such could not have been
taken into consideration to conclude the
charges to have been established. In any
case placing reliance by the Enquiry
Officer or the Disciplinary Authority on
the aforesaid verification report would
tantamount to placing reliance on a
preliminary enquiry on the basis of which
a decision was taken to initiate final
enquiry.
18. In Nirmala J. Jhala Versus State
of Gujarat And Another [2013 (31) LCD
762], Hon'ble Supreme Court on the basis
of consistent view taken by it in its
previous decisions rendered in Amlendu
Ghosh
Vs.
District
Traffic
Superintendent, North-Eastern Railway,
Katiyar, AIR 1960 SC 992, Chiman Lal
Shah Vs. Union of India AIR 1964 SC
1854
and
Narayan
Dattatraya
Ramteerathakhar
Vs.
State
of
Maharashtra & Ors., AIR 1997 SC 2148
in para 23 and 25 of the report observed
as under:-
"23. In view of above, it is evident
that the evidence recorded in preliminary
inquiry cannot be used in regular inquiry
as the delinquent is not associated with it,
and opportunity to cross-examine the
persons examined in such inquiry is not
given. Using such evidence would be
violative of the principles of natural
justice.
25. The preliminary enquiry may be
useful only to take a prima facie view, as
to whether there can be some substance in
the allegation made against an employee
which may warrant a regular enquiry."
19. In view of above we are of the
opinion that a grave error was committed
by the Enquiry Officer as well as the
1 All] Ghanshyam Das Varshney Vs. State of U.P. & Ors.
157
Disciplinary Authority in placing reliance
upon verification reports which evidence
was part of preliminary enquiry and had
lost its significance during the final
enquiry. Any reliance could have been
placed on the said documents only after
they had been duly proved by the
witnesses and an opportunity had been
given to the delinquent to make crossexamination with them. The procedure
adopted was clearly a violation of the
principles of natural justice.
20. As regards, the arguments
advanced by learned Additional Chief
Standing Counsel that only preponderance
of probabilities have to be considered and
strict proof of evidence would not be
required in departmental proceedings
reference again may be made of the case
of Nirmala J. Jhala (Supra) wherein the
Hon'ble Apex Court while distinguishing
the
standard
of
proof
required in
disciplinary proceedings and a criminal
trial after considering several earlier
decisions rendered by it, held in para
6(i)G of the report about disciplinary
proceedings to be quasi-judicial in which
doctrine of proof beyond reasonable
doubt, does not apply and instead
principle
of
preponderance
of
probabilities would apply. The relevant
extract of the said para is reproduced as
under:
"6 (i) G. In view of the above, the
law on the issue can be summarised to the
effect that the disciplinary proceedings
are not a criminal trial, and in spite of the
fact that the same are quasi-judicial and
quasi-criminal, doctrine of proof beyond
reasonable doubt, does not apply in such
cases, but the principle of preponderance
of probabilities would apply. The court
has to see whether there is evidence on
record to reach the conclusion that the
delinquent had committed a misconduct.
However, the said conclusion should be
reached on the basis of test of what a
prudent person would have done."
21. It would be pertinent also to note
that in the above decision itself in para
29(iv) of the report Hon'ble Apex Court
on the question of onus of proof in
departmental proceedings has held in its
conclusion that the onus to prove the
charge lies on the department.
22. It has to be thus clearly borne in
mind that during the course of final
enquiry in the departmental proceedings
although principle of preponderance of
probabilities would apply yet the basic
rules of pleadings and evidence cannot be
allowed to be circumvented by the
enquiry or Disciplinary Oficer during
such proceedings. The onus of proving
the charge would invariably be on the
department unless the charge has been in
very clear, unequivocal and unambiguous
terms admitted by the delinquent.
23. Lastly, we may emphasise that
we are alive to the legal proposition as
argued by learned Additional Standing
Counsel that this court cannot scrutinise
the matter in its writ jurisdiction as if it is
sitting in appeal. We are of the considered
view that taking into consideration a
preliminary enquiry during a regular
enquiry and that too without conducting
any oral enquiry in contravention of the
prescribed Rules would be a mere casual
exercise violating also the rules of natural
justice envisaged under Article 311(2) of
the Constitution of India. Such an enquiry
report cannot be sustained in the eyes of
law. Resultantly, the impugned order of
punishment also deserves to be quashed.
158
 INDIAN LAW REPORTS ALLAHABAD SERIES
24. Accordingly, allowing the writ
petition,
the
impugned
order
of
punishment dated 04-01-2006 is quashed
on the ground that no enquiry was held. In
the peculiar facts and circumstances of the
case, we are also of the view that since the
petitioner has retired long ago, it would
not be justifiable to continue with the
departmental
enquiry
anymore.
The
petitioner is entitled to receive all his
pensionary dues without any reduction.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2015
BEFORE
THE HON'BLE RAN VIJAI SINGH, J.
Civil Misc. Writ Petition No. 454 of 1977
Lalji & Anr.
...Petitioners
Versus
The Deputy Director of Consolidation
Alld. & Ors.
...Respondents
Counsel for the Petitioner:
Sri V.K. Singh, Sri A.P. Singh, Sri S.
Shekhar, Sri Anshuman Singh
Counsel for the Respondents:
S.C., Sri R.N. Shukla, Sri D.D. Chauhan,
Sri Diwakar Singh, Sri P.R. Maurya, Sri
R.K. Shukla, Sri R.P. Mishra
U.P. Consolidation of Holdings Act-Section
48(3)-Reference made by consolidation
officer
without
notice
opportunity
to
petitioner-held illegal-provisions of Section
48(3) being mandatory order impugned
unsustainable-quashed.
Held: Para-12
From the bare perusal of the records and
the submissions made by the learned
counsel for the parties, it transpires that
before making reference, no opportunity
was offered to the petitioner, therefore,
the reference itself was void in nature.
Case Law discussed:
1977 AWC 259; 2013 (6) ADJ 457; (2000(91)
RD 165); Writ C No. 5651 of 2009.
(Delivered by Hon'ble Ran Vijai Singh, J.)
1. Heard Sri V.K. Singh, learned
senior counsel assisted by Sri A.P. Singh,
learned counsel for the petitioner, learned
Standing Counsel appearing for the Staterespondents, Sri Diwakar Singh learned
counsel for the Gaon Sabha and Sri P.R.
Maurya, learned counsel as an intervenor.
2. By means of this writ petition, the
petitioners have prayed for issuing a writ
of certiorari quashing the order dated
25.3.1977 passed by the Deputy Director
of Consolidation in Reference No. 1307
(State Vs. Lalji and Others), by which the
aforesaid reference has been allowed and
the leases granted in favour of the
petitioners on 17.10.1976 have been
cancelled.
3. The facts giving rise to this case
are that the respondent-Gaon Sabha has
made a proposal for grant of agricultural
lease in favour of the petitioner no. 1 over
gata nos. 319, 320, 322, 334/1, 334/2,
335M, 337/3337/2, 324, 333M, 323/1,
323/2 and 325. The same kind of proposal
was made for grant of lease in favour of
petitioner no. 2 also on gata no. 74, 75M,
76/1, 76/2, 77, 78, 326/1, 326/2, 337, 338,
330/2, 331 and 332/7. The proposal of the
gaon sabha was approved by the Sub
Divisional Officer and consequently, the
leases were also executed in favour of the
petitioners. The petitioners names were
also mutated in the revenue records on
8.1.1976 on the basis of the aforesaid.
4. It further transpires that the
village has gone under consolidation