# Girdhar Gopal v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-16
- **Case number:** Writ A No. 5977 of 2013
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girdhar-gopal-v-state-of-u-p-ors-49938
- **Pages:** 11

## Headnote

A. Service Law - Disciplinary proceedings
- Salary - U.P. Government Servants
(Discipline and Appeal) Rules, 1999 - In
the matter of enquiry for awarding major
punishment, no short-cut is permissible.
The charge-sheet has to be furnished to
the delinquent to apprise him of the
charges, which should be specific along
with
the
evidence,
both
oral
and
documentary,
which
the
department
intends to rely for upholding the charges.
In case after service of charge-sheet, the
delinquent needs any documents or copy
thereof, such prayer has to be considered by
the enquiry officer and the documents which are
found relevant for enquiry are to be supplied to
the delinquent. In case copies of any such
document cannot be supplied for any valid
reason, free access has to be afforded to the
delinquent for making inspection of such
records. After this stage, the reply is to be
submitted by the delinquent within the given
time schedule and the enquiry is to proceed,
fixing the date, time and place calling the
delinquent.

Normally, the evidence by the department is
required to be led first to prove the charges
wherein the delinquent is also allowed to
participate,
who
can
cross-examine
the
witnesses, with opportunity of adducing the
evidence either in rebuttal or for disproving the
charges. It is thereafter that the enquiry officer
has to submit its report either saying that any of
the charges stand proved or not. There has to
be corroborating evidence to prove the charge
and without any material being placed by the
department to substantiate the documentary
evidence, the charge cannot be found to be
proved. There has to be a corroboration of facts
from the documents on record and if any report
is also being relied upon, the said report is also
required to be authenticated by the person who
has submitted the report, therefore, for this
purpose the oral enquiry is required to be
held for proving the charges. (Para 4)

B. Scope of Judicial Review - Judicial
review is not an appeal from a decision
but a review of the manner in which the
decision is made. It is meant to ensure
that the individual receives fair treatment
and not to ensure that the conclusion which the
authority reaches is necessarily correct in the
eyes of the court. The court/tribunal in its power
of judicial review does not act as an appellate
authority;
it
does
not
re-appreciate
the
evidence. (Para 7)

The Writ Petition No. 4274 (S/S) of 2002 was
disposed of with a direction to conduct fresh
enquiry. The court had already observed that
the principles of natural justice were not
followed by the Enquiry Officer while
conducting the enquiry. Once the matter was
remanded on a specific point, there was no
occasion to commit the same error by the
Enquiry Officer and in the present case, second
time, again it is admitted on record that the
Enquiry Officer did not fix any date, time
and place while proceeding in the enquiry
and no oral examination was done. The
Enquiry Officer completed the enquiry, exparte, only on the basis of reply of the
Petitioner. Nowhere, St. has mentioned that
any date, time or place for cross examination
was fixed. Thus, it shows that enquiry was
vitiated. In place of four months, they
completed enquiry in four years that too without
following the procedure. It would not be fit to
remand the matter at this stage. It is also borne
144 INDIAN LAW REPORTS ALLAHABAD SERIES
in mind that the Petitioner is retired from service
in the year 2014. (Para 8, 11)

Writ petition allowed. (E-4)

Precedent followed:

## Text

3 All. Girdhar Gopal Vs. State of U.P. & Ors.
143
(2023) 3 ILRA 143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.02.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 5977 of 2013

Girdhar Gopal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Avinash Srivastava, Yogeshwar Sharan
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary proceedings
- Salary - U.P. Government Servants
(Discipline and Appeal) Rules, 1999 - In
the matter of enquiry for awarding major
punishment, no short-cut is permissible.
The charge-sheet has to be furnished to
the delinquent to apprise him of the
charges, which should be specific along
with
the
evidence,
both
oral
and
documentary,
which
the
department
intends to rely for upholding the charges.
In case after service of charge-sheet, the
delinquent needs any documents or copy
thereof, such prayer has to be considered by
the enquiry officer and the documents which are
found relevant for enquiry are to be supplied to
the delinquent. In case copies of any such
document cannot be supplied for any valid
reason, free access has to be afforded to the
delinquent for making inspection of such
records. After this stage, the reply is to be
submitted by the delinquent within the given
time schedule and the enquiry is to proceed,
fixing the date, time and place calling the
delinquent.

Normally, the evidence by the department is
required to be led first to prove the charges
wherein the delinquent is also allowed to
participate,
who
can
cross-examine
the
witnesses, with opportunity of adducing the
evidence either in rebuttal or for disproving the
charges. It is thereafter that the enquiry officer
has to submit its report either saying that any of
the charges stand proved or not. There has to
be corroborating evidence to prove the charge
and without any material being placed by the
department to substantiate the documentary
evidence, the charge cannot be found to be
proved. There has to be a corroboration of facts
from the documents on record and if any report
is also being relied upon, the said report is also
required to be authenticated by the person who
has submitted the report, therefore, for this
purpose the oral enquiry is required to be
held for proving the charges. (Para 4)

B. Scope of Judicial Review - Judicial
review is not an appeal from a decision
but a review of the manner in which the
decision is made. It is meant to ensure
that the individual receives fair treatment
and not to ensure that the conclusion which the
authority reaches is necessarily correct in the
eyes of the court. The court/tribunal in its power
of judicial review does not act as an appellate
authority;
it
does
not
re-appreciate
the
evidence. (Para 7)

The Writ Petition No. 4274 (S/S) of 2002 was
disposed of with a direction to conduct fresh
enquiry. The court had already observed that
the principles of natural justice were not
followed by the Enquiry Officer while
conducting the enquiry. Once the matter was
remanded on a specific point, there was no
occasion to commit the same error by the
Enquiry Officer and in the present case, second
time, again it is admitted on record that the
Enquiry Officer did not fix any date, time
and place while proceeding in the enquiry
and no oral examination was done. The
Enquiry Officer completed the enquiry, exparte, only on the basis of reply of the
Petitioner. Nowhere, St. has mentioned that
any date, time or place for cross examination
was fixed. Thus, it shows that enquiry was
vitiated. In place of four months, they
completed enquiry in four years that too without
following the procedure. It would not be fit to
remand the matter at this stage. It is also borne
144 INDIAN LAW REPORTS ALLAHABAD SERIES
in mind that the Petitioner is retired from service
in the year 2014. (Para 8, 11)

Writ petition allowed. (E-4)

Precedent followed:

1. Abdul Salam Vs St. of U.P. & ors., 2011 (29)
LCD 832 (Para 4)

2. Avadhesh Kumar Rastogi Vs St. of U.P. &
ors., 0024 (22) LCD 1 (Para 4)

3. Chamoli District Co-operative Bank Ltd.
through its Secretary & anr. Vs Raghunath
Singh Rana & ors., Civil Appeal No. 2265 of
2011 (Para 4)

4.
United
Bank
of
India
Vs
Biswanath
Bhattacharjee, Civil Appeal No. 8258 of 2009,
2021 LiveLaw (SC) 109 (Para 4)

Present petition challenges order dated
06.03.2013,
passed
by
disciplinary
authority, awarding major punishment to
the petitioner fixing his salary to the
lowest grade.

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Shri Yogeshwar Sharan
Srivastava,
learned
counsel
for
the
Petitioner and Shri Rajesh Shukla, learned
Standing Counsel for the respondents.

2. The brief facts of the case are that
on
05.07.2001,
the
Petitioner
was
suspended
pending
disciplinary
proceedings against him. A Departmental
enquiry was conducted and Petitioner was
dismissed from service vide order dated
11.07.2002. Challenging the said dismissal
order, the Petitioner filed Writ Petition
(S/S) No.4274 of 2002 in which a specific
stand was taken by the Petitioner that
enquiry was not done in accordance with
law and principles of natural justice was
not followed. It is also submitted that no
date, time and place was fixed by the
Enquiry Officer, therefore, the impugned
order could not survive. The writ petition
was heard and decided and the Court
passed order on 12.08.2008. The impugned
order of dismissal was quashed. However,
it was open for the respondents to proceed
for departmental proceedings afresh.

3. The State filed Special Appeal
No.63 of 2009 challenging the order dated
12.08.2008 which was disposed of with
slight modification that State will complete
departmental enquiry within four months.
An enquiry was completed on 19.01.2011
and impugned order was passed by the
disciplinary authority on 06.03.2013 and
major punishment has been awarded to the
petitioner fixing his salary to the lowest
grade which is under challenge.

4. Learned counsel for the Petitioner in
para 7 of the writ petition has submitted
that Enquiry Officer did not fixed any date,
time and place while proceeding in the
enquiry and no oral examination was done.
The Enquiry Officer completed the enquiry,
ex-parte, only on the basis of reply of the
Petitioner. He has submitted that the
impugned order cannot survive in the eyes
of law, which is a settled law and the same
is violated under U.P. Government Servants
(Discipline and Appeal) Rules, 1999
(hereinater referred to as ''Rules'). In
support of his contention, learned counsel
for the petitioner has placed reliance on the
following judgments :

(i). Abdul Salam vs. State of U.P.
and others 2011 (29) LCD 832 ;

(ii). Avadhesh Kumar Rastogi vs.
State of U.P. and others 2004 (22) LCD 1 ;

(iii).
Chamoli
District
Cooperative Bank Ltd through its Secretary
and anor v. Raghunath Singh Rana and
others in Civil Appeal No.2265 of 2011 ;
3 All. Girdhar Gopal Vs. State of U.P. & Ors.
145

(iv). United Bank of India v.
Biswanath Bhattacharjee in Civil Appeal
No.8258 of 2009 2021 LiveLaw (SC) 109.

(v). In Abdul Salam (Supra), the
court in Para Nos. 16 to 19 and 24 to 27 has
held as under :

"16. Before
coming
to
any
conclusion, it would be relevant to mention
the legal position with regard to the
conduction of the departmental enquiry and
award of punishment to a delinquent
employee. Time and again, the Hon'ble
Apex Court as well as this Court has
pronounced that in the matter of enquiry
for awarding major punishment, no shortcut is permissible. The charge-sheet has to
be furnished to the delinquent to apprise
him of the charges, which should be
specific along with the evidence, both oral
and documentary, which the department
intends to rely for upholding the charges. In
case after service of charge-sheet, the
delinquent needs any documents or copy
thereof, such prayer has to be considered
by the enquiry officer and the documents
which are found relevant for enquiry are to
be supplied to the delinquent. In case
copies of any such document can not be
supplied for any valid reason, free access
has to be afforded to the delinquent for
making inspection of such records. After
this stage, the reply is to be submitted by
the delinquent within the given time
schedule and the enquiry is to proceed,
fixing the date, time and place calling the
delinquent.

17. Normally, the evidence by the
department is required to be led first to
prove the charges wherein the delinquent is
also allowed to participate, who can crossexamine the witnesses, with opportunity of
adducing the evidence either in rebuttal or
for disproving the charges. It is thereafter
that the enquiry officer has to submit its
report either saying that any of the charges
stand proved or not. There has to be
corroborating evidence to prove the charge
and without any material being placed by
the
department
to
substantiate
the
documentary evidence, the charge can not
be found to be proved. There has to be a
corroboration of facts from the documents
on record and if any report is also being
relied upon, the said report is also required
to be authenticated by the person who has
submitted the report, therefore, for this
purpose the oral enquiry is required to be
held for proving the charges.

18. In the case of State of Uttar
Pradesh and others Versus Saroj Kumar
Sinha, the Hon'ble Apex Court has
observed as under:

"26. The first inquiry report is
vitiated also on the ground that the inquiry
officers failed to fix any date for the
appearance of the respondent to answer the
charges.

Rule 7(x) clearly provides as
under:

"(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding in spite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer 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."

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 enquiry officer can
proceed with the inquiry ex parte. Even in
146 INDIAN LAW REPORTS ALLAHABAD SERIES
such circumstances it is incumbent on the
enquiry 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 cross
examination
of
the
witnesses.
But
nonetheless in order to establish the
charges the department is required to
produce the necessary evidence before the
enquiry officer. This is so as to avoid the
charge that the enquiry officer has acted as
a prosecutor as well as a judge.

28. An enquiry officer acting as a
quasi judicial 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
proved. In the present case the aforesaid
procedure has not been observed. Since no
oral evidence has been examined the
documents have not been proved, and could
not have been taken into consideration to
conclude that the charges have been proved
against the respondents."

19. In the case of Union of India
and others Versus Prakash Kumar Tandon
and others, while examining the effect of
not examining the witnesses, the Hon'ble
Apex Court
 observed as under:

"14.
In
the
aforementioned
situation, we are of the opinion that the
Tribunal as also the High Court cannot be
said to have erred in holding that the said
Mr. Walia should have been examined as a
witness.

15. The principles of natural
justice demand that an application for
summoning a witness by the delinquent
officer should be considered by the enquiry
officer. It was obligatory on the part of the
enquiry officer to pass an order in the said
application. He could not refuse to consider
the same. It is not for the Railway
Administration to contend that it is for them
to consider as to whether any witness
should be examined by it or not. It was for
the enquiry officer to take a decision
thereupon. A disciplinary proceeding must
be fairly conducted. An enquiry officer is a
quasi-judicial authority. He, therefore, must
perform his functions fairly and reasonably
which is even otherwise the requirement of
the principles of natural justice."

24. In the present case it is
evident from the records that the enquiry
officer during the course of enquiry by
order dated 03.07.2002 had come to the
conclusion that it is necessary to provide
opportunity of hearing to the delinquent
employee and for that purpose had fixed
15.07.2002.
However,
on
15.07.2002
enquiry could not be held, so another date
was fixed. Thereafter certain dates were
fixed by the enquiry officer and it was by an
order dated 29.8.2002, the enquiry officer
had observed that no other document is
required to be given to the delinquent
employee, therefore, 07.09.2002 was fixed
for submitting reply by the delinquent. It is
admitted fact as borne out from the enquiry
report dated 17.10.2002 that the delinquent
employee had submitted his written reply
on 05.10.2002. However, from the perusal
of record it appears that no date, time and
place was fixed by the enquiry officer for
holding oral enquiry after submission of
the reply to the charge-sheet by the
delinquent employee and the entire enquiry
proceedings were completed on the basis of
charge-sheet and the reply submitted by the
delinquent
employee,
relying
on
the
documentary evidence submitted in support
of the alleged charges.
3 All. Girdhar Gopal Vs. State of U.P. & Ors.
147

25. The learned Single Judge in
the impugned judgment has come to the
conclusion that the enquiry officer did not
examine any witnesses as there was no
need to summon any witness for the simple
reason that in support of the charges, only
the documents were relied upon and the
documents were so categorical that they
were not required to be proved by any
witness. It has been further observed by the
learned Single Judge that if we examine the
report of the enquiry officer, indeed, the
documentary evidence seems to be so
whelming that it was not obligatory for the
enquiry officer to have called any witness
in support of the charges.

26. The learned Single Judge,
however, did not take into consideration
that if the witnesses were not required to be
examined in support of the charges, even
then it was incumbent upon the enquiry
officer to have fixed the date, time and
place after submission of the reply to the
charge-sheet by the delinquent for holding
oral enquiry in order to appreciate the
evidences filed in support of the charges in
presence of the delinquent employee and
call upon the department to prove the
alleged charges. There is no denial about
the fact that such exercise was not done by
the enquiry officer in the present case.

27. In this view of the matter, we
are of the considered opinion that the
departmental enquiry conducted against
the appellant-petitioner on the basis of
which the punishment of dismissal from
service was awarded, was not held in
accordance with law as propounded by the
Apex Court as well as this Court, as
discussed above."

5.
In Avadhesh
Kumar
Rastogi
(Supra), in Para 5, the Court has held that :

5. We are of the view that the
procedure followed by the Inquiry Officer
and the conclusions drawn by him against
the petitioner are vitiated in law. There can
be no debate on the point that even if the
delinquent official was not replying the
charges by filing written statement and was
avoiding to participate in the inquiry, it
was the duty of the Inquiry Officer to fix a
date, time and place of the inquiry and to
intimate the delinquent official about the
same and to receive oral or documentary
evidence in support of the charges. In this
connection, a reference may be made to a
recent judgment of this Court in Radhey
Kant Khare v. U.P. Coop. Sugar Factories
Federation Ltd., (2003 (21) LCD 610)
wherein it has been held that notice should
be issued to the delinquent official
indicating date, time and place of the
inquiry. In the instant case, the Inquiry
Officer neither held any oral inquiry nor
intimated date, time and place of such
inquiry to the petitioner nor received any
oral or documentary evidence in support of
the charges. In fact, there was no material
before him, on the basis of which it could
have been said that the charges were
proved. It was a case where oral evidence
was a must, to prove that the different
sellers identified as non scheduled caste
were in fact scheduled caste. The Inquiry
Officer appears to have entertained the
belief that if the employee was not denying
the charges by filing a written statement,
there was no necessity of receiving any
evidence in support of the charges. Legally
speaking this belief was not correct. So the
order of dismissal from service is vitiated in
law and deserves to be quashed. The Tribunal
could not appreciate this infirmity in the
inquiry and in the dismissal order. Hence, its
order also deserved to be quashed."
148 INDIAN LAW REPORTS ALLAHABAD SERIES

6. In Chamoli District Co-operative
Bank Ltd (Supra) in Para Nos. 19 to 21 the
court has held as under :

"19. The compliance of natural
justice in domestic/disciplinary inquiry is
necessary has long been established. This
Court has held that even there are no
specific statutory rule requiring observance
of natural justice, the compliance of
natural
justice
is
necessary.
Certain
ingredients
have
been
held
to
be
constituting integral part of holding of an
inquiry. The Apex Court in Sur Enamel and
Stamping Works Pvt. Ltd. v. Their Workmen
reported in (1964) 3 SCR 616 has laid
down following:-

"... An enquiry cannot be said to
have been properly held unless, (i) the
employee proceeded against has been
informed clearly of the charges levelled
against him, (ii) the witnesses are examined
- ordinarily in the presence of the employee
- in respect of the charges, (iii) the
employee is given a fair opportunity to
cross-examine witnesses, (iv) he is given a
fair opportunity to examine witnesses
including himself in his defence if he so
wishes on any relevant matter, and (v) the
inquiry officer records his findings with
reasons for the same in his report."
20. The Apex Court again in State Bank of
India Vs. R.K. Jain and Ors., reported in
(1972) 4 SCC 304 held that if an inquiry is
vitiated by violation of principles of natural
justice or if no reasonable opportunity was
provided to the delinquent to place his
defence, it cannot be characterized as a
proper domestic inquiry held in accordance
with the rules of natural justice. In
paragraph 23, the following was laid
down:- "......As emphasised by this Court in
Ananda Bazar Patrika (P) Ltd. v. Its
Workmen,
(1964)
3
SCR
601,
the
termination of an employee's service must
be preceded by a proper domestic inquiry
held in accordance with the rules of natural
justice. Therefore, it is evident that if the
inquiry is vitiated by violation of the
principles of natural justice or if no
reasonable opportunity was provided to a
delinquent to place his defence, it cannot
be characterized as a proper domestic
inquiry held in accordance with the rules of
natural justice......"

21. The Apex Court in State of
Uttranchal & Ors. Vs. Kharak Singh
reported in (2008) 8 SCC 236 had occasion
to examine various contours of natural
justice which need to be specified in a
departmental inquiry. The Apex Court
noticed earlier judgments where principles
were laid down as to how inquiry is to be
conducted. It is useful to refer paragraphs
9, 10, 11, 12, 13 and 15, which are to the
following effect:-

".....9.
Before
analyzing
the
correctness of the above submissions, it is
useful to refer various principles laid down
by this Court as to how enquiry is to be
conducted and which procedures are to be
followed.

10. The following observations
and principles laid down by this Court in
Associated Cement Co. Ltd. vs. The
Workmen and Anr. [1964] 3 SCR 652 are
relevant:

"... ... In the present case, the first
serious infirmity from which the enquiry
suffers proceeds from the fact that the three
enquiry
officers
claimed
that
they
themselves had witnessed the alleged
misconduct of Malak Ram. Mr. Kolah
contends that if the Manager and the other
officers saw Malak Ram committing the act
of misconduct, that itself would not
disqualify them from holding the domestic
enquiry. We are not prepared to accept this
argument. If an officer himself sees the
misconduct of a workman, it is desirable
3 All. Girdhar Gopal Vs. State of U.P. & Ors.
149
that the enquiry should be left to be held by
some other person who does not claim to
be an eye- witness of the impugned
incident.
As
we
have
repeatedly
emphasised, domestic enquiries must be
conducted honestly and bona fide with a
view to determine whether the charge
framed against a particular employee is
proved or not, and so, care must be taken to
see that these enquiries do not become
empty formalities. If an officer claims that
he had himself seen the misconduct alleged
against an employee, in fairness steps
should be taken to see that the task of
holding an enquiry is assigned to some
other officer. How the knowledge claimed
by the enquiry officer can vitiate the entire
proceedings of the enquiry is illustrated by
the present enquiry itself. ... .....

..... It is necessary to emphasise
that in domestic enquiries, the employer
should take steps first to lead evidence
against the workman charged, give an
opportunity to the workman to crossexamine the said evidence and then should
the workman be asked whether he wants to
give any explanation about the evidence led
against him. It seems to us that it is not fair
in domestic enquiries against industrial
employees that at the very commencement
of the enquiry, the employee should be
closely cross- examined even before any
other evidence is led against him. In
dealing with domestic enquiries held in
such industrial matters, we cannot overlook
the fact that in a large majority of cases,
employees are likely to be ignorant, and so,
it is necessary not to expose them to the
risk of cross- examination in the manner
adopted in the present enquiry proceedings.
Therefore, we are satisfied that Mr. Sule is
right in contending that the course adopted
in the present enquiry proceedings by
which Malak Ram was elaborately crossexamined at the outset constitutes another
infirmity in this enquiry."

11) In ECIL v. B. Karunakar
(1993) 4 SCC 727, it was held:

"(1) Where the enquiry officer is
other than the disciplinary authority, the
disciplinary proceedings break into two
stages. The first stage ends when the
disciplinary
authority
arrives
at
its
conclusions on the basis of the evidence,
enquiry officer's report and the delinquent
employee's reply to it. The second stage
begins when the disciplinary authority
decides to impose penalty on the basis of its
conclusions. If the disciplinary authority
decides
to
drop
the
disciplinary
proceedings, the second stage is not even
reached.

While the right to represent
against the findings in the report is part of
the
reasonable
opportunity
available
during the first stage of the inquiry viz.,
before the disciplinary authority takes into
consideration the findings in the report, the
right to show cause against the penalty
proposed belongs to the second stage when
the disciplinary authority has considered
the findings in the report and has come to
the conclusion with regard to the guilt of
the employee and proposes to award
penalty on the basis of its conclusions. The
first right is the right to prove innocence.
The second right is to plead for either no
penalty or a lesser penalty although the
conclusion regarding the guilt is accepted.
It is the second right exercisable at the
second stage which was taken away by the
Forty- second Amendment. The second
stage consists of the issuance of the notice
to show cause against the proposed penalty
and of considering the reply to the notice
and deciding upon the penalty. What is
dispensed with is the opportunity of making
representation on the penalty proposed and
not of opportunity of making representation
150 INDIAN LAW REPORTS ALLAHABAD SERIES
on the report of the enquiry officer. The
latter right was always there. But before the
Forty-second
Amendment
of
the
Constitution, the point of time at which it
was to be exercised had stood deferred till
the second stage viz., the stage of
considering the penalty. Till that time, the
conclusions that the disciplinary authority
might have arrived at both with regard to
the guilt of the employee and the penalty to
be imposed were only tentative. All that has
happened
after
the
Forty-second
Amendment of the Constitution is to
advance the point of time at which the
representation of the employee against the
enquiry
officer's
report
would
be
considered. Now, the disciplinary authority
has to consider the representation of the
employee against the report before it
arrives at its conclusion with regard to his
guilt or innocence in respect of the charges.

* * * Article 311(2) says that the
employee shall be given a "reasonable
opportunity of being heard in respect of the
charges against him". The findings on the
charges given by a third person like the
enquiry officer, particularly when they are
not borne out by the evidence or are
arrived at by overlooking the evidence or
misconstruing
it,
could
themselves
constitute new unwarranted imputations.
The proviso to Article 311(2) in effect
accepts two successive stages of differing
scope. Since the penalty is to be proposed
after the inquiry, which inquiry in effect is
to be carried out by the disciplinary
authority (the enquiry officer being only his
delegate appointed to hold the inquiry and
to assist him), the employee's reply to the
enquiry officer's report and consideration
of such reply by the disciplinary authority
also constitute an integral part of such
inquiry.

Hence, when the enquiry officer
is not the disciplinary authority, the
delinquent employee has a right to receive
a copy of the enquiry officer's report before
the disciplinary authority arrives at its
conclusions with regard to the guilt or
innocence of the employee with regard to
the charges levelled against him. That right
is a part of the employee's right to defend
himself against the charges levelled against
him. A denial of the enquiry officer's report
before the disciplinary authority takes its
decision on the charges, is a denial of
reasonable opportunity to the employee to
prove his innocence and is a breach of the
principles of natural justice."

12) In Radhey Shyam Gupta vs.
U.P. State Agro Industries Corporation Ltd.
and Another, (1999) 2 SCC 2, it was held:

"34. But in cases where the
termination is preceded by an enquiry and
evidence is received and findings as to
misconduct of a definitive nature are
arrived at behind the back of the officer
and where on the basis of such a report, the
termination order is issued, such an order
will be violative of the principles of natural
justice inasmuch as the purpose of the
enquiry is to find out the truth of the
allegations with a view to punish him and
not merely to gather evidence for a future
regular departmental enquiry. In such
cases, the termination is to be treated as
based or founded upon misconduct and will
be punitive. These are obviously not cases
where the employer feels that there is a
mere cloud against the employee's conduct
but are cases where the employer has
virtually accepted the definitive and clear
findings of the enquiry officer, which are all
arrived at behind the back of the employee
-- even though such acceptance of findings
is not recorded in the order of termination.
That is why the misconduct is the
foundation and not merely the motive in
such cases."
3 All. Girdhar Gopal Vs. State of U.P. & Ors.
151

13) In Syndicate Bank and Others
vs. Venkatesh Gururao Kurati, (2006) 3
SCC 150, the following conclusion is
relevant:

"18. In our view, non-supply of
documents on which the enquiry officer
does not rely during the course of enquiry
does not create any prejudice to the
delinquent. It is only those documents,
which are relied upon by the enquiry officer
to arrive at his conclusion, the non-supply
of which would cause prejudice, being
violative of principles of natural justice.
Even then, the non-supply of those
documents prejudice the case of the
delinquent officer must be established by
the delinquent officer. It is well-settled law
that the doctrine of principles of natural
justice are not embodied rules. It cannot be
put in a straitjacket formula. It depends
upon the facts and circumstances of each
case. To sustain the allegation of violation
of principles of natural justice, one must
establish that prejudice has been caused to
him for non-observance of principles of
natural justice."

15. From the above decisions, the
following principles would emerge:

(i)
The
enquiries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

(ii) If an officer is a witness to
any of the incidents which is the subject
matter of the enquiry or if the enquiry was
initiated on a report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps first
to
lead
evidence
against
the
workman/delinquent charged and give an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked to
give any explanation about the evidence led
against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any."

7. In United Bank of India v.
Biswanath Bhattacharjee in Civil Appeal
No.8258 of 2009, in paras 17 and 19 the
Court has held as under :

17. Apart from cases of "no
evidence", this court has also indicated that
judicial
review
can be
resorted
to.
However, the scope of judicial review in
such cases is limited10. In B.C. Chaturvedi
v. Union of India11 a three-judge bench of
this court ruled that judicial review is not
an appeal from a decision but a review of
the manner in which the decision is made.
It is meant to ensure that the individual
receives fair treatment and not to ensure
that the conclusion which the authority
reaches is necessarily correct in the eyes of
the court. The court/tribunal in its power of
judicial review does not act as an appellate
authority; it does not re-appreciate the
evidence. The court held that:

"12. Judicial review is not an
appeal from a decision but a review of the
manner in which the decision is made.
Power of judicial review is meant to ensure
that the individual receives fair treatment
and not to ensure that the conclusion which
the authority reaches is necessarily correct
152 INDIAN LAW REPORTS ALLAHABAD SERIES
in the eye of the court. When an enquiry is
conducted on charges of misconduct by a
public servant, the Court/Tribunal is
concerned
to
determine
whether
the
enquiry was held by a competent officer or
whether rules of natural justice are
complied with. Whether the findings or
conclusions are based on some evidence,
the authority entrusted with the power to
hold enquiry has jurisdiction, power and
authority to reach a finding of fact or
conclusion. But that finding must be based
on some evidence. Neither the technical
rules of the Evidence Act nor of proof of
fact or evidence as defined therein, apply to
disciplinary
proceeding.
When
the
authority
accepts
that
evidence
and
conclusion receives support therefrom, the
disciplinary authority is entitled to hold
that the delinquent officer is guilty of the
charge. The Court/Tribunal in its power of
judicial review does not act as appellate
authority to reappreciate the evidence and
to arrive at its own independent findings on
the evidence. The Court/Tribunal T.N.C.S.
Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC
255. (1995) 6 SCC 749. may interfere
where the authority held the proceedings
against the delinquent officer in a manner
inconsistent with the rules of natural justice
or
in
violation
of
statutory
rules
prescribing the mode of enquiry or where
the conclusion or finding reached by the
disciplinary authority is based on no
evidence. If the conclusion or finding be
such as no reasonable person would have
ever reached, the Court/Tribunal may
interfere with the conclusion or the finding,
and mould the relief so as to make it
appropriate to the facts of each case.

13. The disciplinary authority is
the sole judge of facts. Where appeal is
presented, the appellate authority has coextensive
power
to
reappreciate
the
evidence or the nature of punishment. In a
disciplinary enquiry, the strict proof of
legal evidence and findings on that
evidence are not relevant. Adequacy of
evidence or reliability of evidence cannot
be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C.
Goel [Union of India v. H.C. Goel, (1964) 4
SCR 718], this Court held at p. 728 that if
the conclusion, upon consideration of the
evidence reached by the disciplinary
authority, is perverse or suffers from patent
error on the face of the record or based on
no evidence at all, a writ of certiorari could
be issued."

19. The bank is correct, when it
contends that an appellate review of the
materials and findings cannot ordinarily be
undertaken, in proceedings under Article 226
of the Constitution. Yet, from H.C. Goel
onwards, this court has consistently ruled
that where the findings of the disciplinary
authority are not based on evidence, or based
on a consideration of irrelevant material, or
ignoring relevant material, are mala fide, or
where the findings are perverse or such that
they could not have been rendered by any
reasonable
person
placed
in
like
circumstances, the remedies under Article
226 of the Constitution are available, and
intervention, warranted. For any court to
ascertain if any findings were beyond the
record (i.e., no evidence) or based on any
irrelevant or extraneous factors, or by
ignoring material evidence, necessarily some
amount of scrutiny is necessary. A finding of
"no evidence" or perversity, cannot be
rendered sans such basic scrutiny of the
materials, and the findings of the disciplinary
authority.
However,
the
margin
of
appreciation of the court under Article 226 of
the Constitution would be different; it is not
appellate in character."

8. Learned counsel for the Petitioner
has
submitted
that
the
enquiry
is
3 All. Shivendra Pati Tripathi Vs. State Information Commission, UP Indira Bhawan, Lucknow
 & Ors.
153
vitiated. He has further submitted that
though the Division Bench has directed to
conclude the enquiry within four months
but the same was completed within four
years beyond stipulated time by the Court.
He has further submitted that disciplinary
proceedings as well as Enquiry Officer
have committed grave error by not
considering the fact that no date, time and
place was fixed and earlier stand of the
petitioner which was already adjudicated
by Single Judge was again reiterated by
them. He has submitted that respondents
have lost their right to continue their
enquiry, that too after remand. He has
further submitted that the Petitioner has
retired from service in the year 2014. It
would not be feasible to remand the matter
at this moment.

9.
Shri
Rajesh
Shukla,
learned
Standing Counsel for the respondents has
submitted
that
the
Petitioner
had
committed misconduct and his reply was
considered by the Enquiry Officer and
thereafter enquiry report was submitted on
the basis of which final order has been
passed. He has submitted that there is no
illegality and infirmity in the proceedings
and order impugned is justified.

10. Heard learned counsel for the
parties and perused the record.

11. It is admitted on record that
earlier, the petition was allowed. The Writ
Petition no. 4274 (S/S) of 2002 was
disposed of with a direction to conduct
fresh enquiry. The court had already
observed that the principles of natural
justice was not followed by the Enquiry
Officer while conducting the enquiry.
Once the matter was remanded on a
specific point, there was no occasion to
commit the same error by the Enquiry
Officer and in the present case, second
time, again it is admitted on record that the
Enquiry Officer did not fixed any date,
time and place and completed the enquiry
only on the basis of reply submitted by the
petitioner and stand has been taken by the
petitioner in para 7 of the writ petition and
same has been replied in para 8 of the
counter affidavit. Nowhere, State has
mentioned that any date, time or place for
cross examination was fixed. Thus, it goes
to show that enquiry was vitiated. In place
of four months, they completed enquiry in
four years that too without following the
procedure. It would not be fit to remand
the matter at this stage. It is also borne in
mind that the Petitioner is retired from
service in the year 2014.

12. In view of the above discussions
made above, the writ petition deserves to
be allowed.

13. The writ petition is allowed. The
impugned order dated 06.03.2013 passed
by
respondent
no.
2
is
quashed.
Consequences to follow.
----------
(2023) 3 ILRA 153
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.03.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 7338 of 2012

Shivendra Pati Tripathi ...Petitioner
Versus
State Information Commission, UP Indira
Bhawan, Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Nandita Bharti, Abhishek Mishra, Abhishek
Misra