# Hansaram Mishra v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-15
- **Case number:** Writ-A No. 42556 of 2013
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hansaram-mishra-v-state-of-u-p-ors-43187
- **Pages:** 8

## Headnote

Constitution of India, Art.-226-Dismissal
from
service-without
opportunity
of
personal hearing-without supply of enquiry
report-without
opportunity
to
crossexamine the witness-held-Principle of
Natural Justice violated-quashed on ground
of disproportionate punishment also.
442
 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-9 & 22

## Text

1 All] Hansaram Mishra Vs. State of U.P. & Ors.
441
respondents vide order dated 12.7.2013
which was communicated vide order
dated 15.7.2013 but surprisingly, neither
any disclosure about the aforesaid order
of rejection has been made in the writ
petition nor the quashing of the said order
has been sought in the writ petition.
19. As far as the appointment under
Dying in Harness Rules is concerned, it is
established from the documents brought
on record by the official respondents that
Smt. Vinita Srivastava and Km. Shilpi
Srivastava are the wife and daughter of
the deceased. Furthermore, the petitioner
do not fall within the definition of
"family" under the 1974 Rules. Therefore,
the action of the official respondents
cannot be said to be unreasonable or
legally unjustified.
20. It may be added that during the
course of arguments, it has been brought
to the notice of the court that the
petitioners
have
entered
into
a
compromise with the wife of deceased
Arvind Nath Srivastava, who is private
respondent in the present proceedings. As
per compromise, all post death beneifits
of Late Arvind Nath Srivastava shall be
paid in equal share to the petitioners. The
wife-respondent shall receive family
pension and the petitioners and other
private respondents would have no
objection with regard to compassionate
appointment to Km.Shilpi Sriavasta.
21. Having examined the matter in
the light of the relevant Rules, referred to
above, the compromise said to have been
entered into between the parties, cannot
be said to be a valid document in the eyes
of law, as the same is against the
provisions of law because in presence of
real daughter and wife of the petitioner,
the court cannot direct the official
respondents to make payment of post
death benefits in favour of the petitioners.
Needless to say, that the court cannot go
contrary
to
rule
to
recognize
the
compromise. In other words, by consent
or agreement, parties cannot achieve what
is contrary to law and the court is not
bound to accept the compromise entered
into between the parties to the legal
proceedings.
22. In view of the aforesaid detail
discussions, the petitioner is not entitled
for any relief and the writ petition is
hereby
dismissed.
The
official
respondents shall make the payment of
post death benefits, family pension and
dealt
the
matter
of
compassionate
appointment strictly in accordance with
relevant rules.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Writ-A No. 42556 of 2013
Hansaram Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Anil Kumar
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Dismissal
from
service-without
opportunity
of
personal hearing-without supply of enquiry
report-without
opportunity
to
crossexamine the witness-held-Principle of
Natural Justice violated-quashed on ground
of disproportionate punishment also.
442
 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-9 & 22
9.
Learned counsel for the petitioner
submits that the impugned order dated
15.07.2013 passed by respondent No. 3
and order dated 01.08.1994 passed by
the
respondent
No.
1
cannot
be
sustained
on
the
ground
that
the
disciplinary proceedings were vitiated in
law and as such no opportunity of
personal hearing had ever been afforded
to the petitioner nor even the inquiry
report had been supplied to him and
further submits that even he had not
been permitted to cross-examine the
witnesses,
therefore,
the
complete
inquiry was against the principles of
natural justice.
22.
Considering
the
facts
and
circumstances of the case, the punishment
awarded to the petitioner of dismissal
from service is too harsh and totally
disproportionate to the charges, for which
he had been found guilty. The punishment
of dismissal from service are resorted only
if there is very grave misconduct. The
punishment from dismissal from service
imposed on the petitioner is too harsh and
is liable to be set-aside.
Case Law discussed:
AIR 1998 SC 3038; AIR 2000 SC 277; 2003 (1)
AWC 84 (SC); 2002(3) UPLBEC 2799; AIR 1987
SC 2386; AIR 1994 SC 215; 2001 (4) AWC 2630,
2002 Lab IC 259.
(Delivered by Hon'ble Mahesh Chandra
Tripahi, J.)
1. Heard Sri Ram Krishna and Sri
Anil Kumar, learned counsels for the
petitioner and Sri Pankaj Rai, learned
Additional Chief Standing Counsel for the
respondents.
2. By means of the present writ petition,
the petitioner has prayed for quashing the
impugned order dated 15.07.2013 passed by
respondent No. 3 and order dated 01.08.1994
passed by the respondent No. 1.
3. After exchange of affidavits, the
writ petition is disposed of finally.
4. Brief facts giving rise to the present
writ petition are that the petitioner was
appointed as regular Sahkari Kurk Amin on
commission basis in the year 1978 in
Kishan Sewa Sahkari Samiti Pakariya
Hakim Puwayan, Sahjahanpur in the pay
scale of Rs. 354-350. The appointment
letter has been brought on record as
Annexure No. 1 to the writ petition.
5. It has been averred in the writ
petition that the petitioner had lodged an
F.I.R., against one Sri Satnam Singh,
against whom an allegation had been
levelled that he had kidnapped the
petitioner and the petitioner was rescued by
the people of the locality and on the same
day one F.I.R. had also been lodged by Sri
Bhupendra Tripathi, Planning Director of
Zila Gram Vikas Adhikaran, Shahjahanpur
against the petitioner regarding the alleged
demand of Rs. 500/- as bribe from Sri
Satnam Singh and in this regard an F.I.R.,
had been lodged under Sections 395, 224,
225, 333, 427, 161 and 323 IPC and Section
5 (2) of Prevention of Anti Corruption Act.
The same was registered as Case Crime No.
10 of 1993. The petitioner against the said
F.I.R. had filed criminal case and this Court
vide order dated 17.02.1993 had passed
interim order in favour of the petitioner with
following observations:-
"Standing Counsel desires and is
granted one month's time to file counter
affidavit. The rejoinder affidavit may be
filed within two weeks next. List thereafter
for hearing on admission.
In the meanwhile and until further
orders, both investigation and the arrest
of the petitioner shall remain stayed."
1 All] Hansaram Mishra Vs. State of U.P. & Ors.
443
6.

The
District
Magistrate,
Shahjahanpur vide order dated 20.01.1993
had suspended the petitioner on the basis
of the allegations which were levelled
against the petitioner as per the First
Information Report. Aggrieved with the
order dated 20.01.1993, the petitioner had
filed writ petition and the same had been
disposed of vide order dated 02.04.1993
with direction to the respondents to
complete the disciplinary proceeding
against petitioner within three months.
Thereafter,
the
petitioner
had
been
charge-sheeted on 15.03.1994 and in
response he has submitted reply on
02.04.1994. Thereafter, the petitioner had
received
show
cause
notice
dated
23.04.1994 sent by the respondent No. 1
stating therein that all the charges against
the petitioner were found to be correct as
per inquiry report and if the petitioner is
to say anything, he may submit his
response.
7. It has been averred in the writ
petition that no copy of the inquiry report
had ever been given to the petitioner and
the same had been conducted behind his
back and no opportunity had been
afforded to the petitioner and further the
petitioner had been denied the right to
cross-examine the witnesses. It appears
from the record that in spite of the
categorical direction issued by this Court
for concluding the inquiry in the matter
but the same had not taken place within
stipulated time. The petitioner was
compelled again to approach this Court by
means of Contempt Petition No. 1120 of
1994 and the Hon'ble Contempt Court
vide order dated 22.07.1994 had issued
notices to the respondent No. 1. After
receiving notices, the petitioner had
received
communication
dated
02.09.1994 by which it had been indicates
that the petitioner's service had already
been
terminated
vide
order
dated
01.08.1994. It has also been averred that
the petitioner had assailed the termination
order dated 01.08.1994 through Writ
Petition
No.
33183
of
1994
and
meanwhile, the petitioner had also moved
an application to the State Government
through Commissioner with prayer for
initiation of fresh inquiry. Thereafter, vide
letter dated 01.05.2003, the District
Assistant Registrar Co-operative Society
directed
the
Additional
Development
Officer (Co-operative) to conduct the fresh
enquiry in the matter and as per the
direction
the
Additional
Development
Officer
(Co-operative)
conducted
the
inquiry and submitted report on 06.05.2003.
Meanwhile, the police has also inquired into
the matter in pursuance to the direction
issued by this Court dated 14.10.2003 and
after
conducting
the
inquiry
the
investigating officer had submitted final
report on 22.12.2007. It is categorically
averred in the Paragraph No. 30 of the writ
petition that learned Sessions Judge,
Shahjahanpur vide order dated 16.07.2008
had accepted the final report.
8. It is relevant to mention at this
stage that the petitioner who had filed
earlier writ petition which was pending
consideration before this Court was
finally disposed of vide order dated
08.1.2012 with observation that the
petitioner may filed appeal before the
Divisional Commissioner under Rule 11
of the Uttar Pradesh Government Servant
(Discipline & Appeal) 1999 and the same
may be considered and decided within
two months. The Commissioner, Bareilly
Division, Bareilly vide order dated
15.07.2013 had dismissed the appeal. The
same is assailed by means of the present
writ petition.
444
 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Learned counsel for the petitioner
submits that the impugned order dated
15.07.2013 passed by respondent No. 3
and order dated 01.08.1994 passed by the
respondent No. 1 cannot be sustained on
the
ground
that
the
disciplinary
proceedings were vitiated in law and as
such no opportunity of personal hearing
had ever been afforded to the petitioner
nor even the inquiry report had been
supplied to him and further submits that
even he had not been permitted to crossexamine the witnesses, therefore, the
complete
inquiry
was
against
the
principles of natural justice.
10. Learned counsel for the
petitioner
further
submits
that
the
allegation had been levelled against the
petitioner for asking bribe of Rs. 500/-
from on Sri Satnam Singh against whom
he had firstly lodged the F.I.R., the
complete story was concocted and had
deliberately implicated him just only to
malign and tarnish the image of the
petitioner. He further submits that in the
present matter, the police had inquired
into
the
matter
and
investigated
thoroughly
regarding
the
alleged
incidence
and
once
it
had
been
investigated by the police department and
submitted the final report and further the
same had been accepted by the learned
Sessions Judge on 16.07.2008, then in
view of the aforesaid circumstances, the
impugned order cannot be sustained and
petitioner cannot be held for guilty of
such petty offence and whereas the
departmental inquiry had been taken place
in violation of principles of natural
justice. Therefore, the order impugned
cannot be sustained.
11.

Sri
Pankaj
Rai,
learned
Additional
Chief
Standing
Counsel
submits
that
in
the
departmental
proceeding, the petitioner had been given
ample opportunity to defend himself and
in the departmental inquiry, he was found
to be guilty even his departmental appeal
has also been rejected, therefore, at this
stage, he cannot be permitted to submit
that the inquiry was in violation of the
principles of natural justice. He further
submits that the criminal proceedings are
entirely different even if the final report
had been submitted in the criminal matter,
even though the departmental proceeding
would not be vitiated and the petitioner is
not entitled for any relief in this regard.
12. Heard rival submissions of
learned counsel for the parties and
perused the record.
13. Bare perusal of the impugned
orders, the allegation which had been
levelled by one Sri Satnam Singh S/o Sri
Gurdeep Singh who was admittedly the
defaulter and had moved a representation
to the District Magistrate that the
petitioner had asked Rs. 500/- from him
and, therefore, he may be apprehended,
therefore, the direction was issued on
18.01.1993 to
Superior
Officers to
apprehend the petitioner on the spot and it
has been alleged that the petitioner was
apprehended while receiving Rs. 500/-
and once he was caught, he misbehaved to
the Superior Officers. It is relevant to
notice at this stage, that the said plot had
been designed on the dictate of a defaulter
and as per departmental inquiry, nothing
concrete had been established regarding
the alleged incidence. Once after thorough
inquiry,
the
police
department
had
submitted final report regarding the
alleged incidence and not found the
petitioner guilty for taking any bribe then
the order impugned cannot be sustained in
1 All] Hansaram Mishra Vs. State of U.P. & Ors.
445
the light of the aforesaid facts and
circumstances whereas in the departmental
inquiry, the procedure was flagrantly
violated. Even the inquiry report had not
been supplied to the petitioner and he had
been denied for the cross-examination in the
said proceedings.
14. The aforementioned facts would
eventually prove that there were various
flaws in the inquiry process, the allegation
was levelled against petitioner by a person
who was admittedly defaulter, his version
has been taken as sacrosanct by the
department and no efforts had been made
to find out the correct facts by the
department and even his past service
record
had
not
been
taken
into
consideration, very leisurely allegations
were made and complainant version was
taken as gospel truth and every efforts
were made just to nab the petitioner. As
already noticed above, since the charge on
which punishment has been imposed on
behest of the defaulter, even though same
was thoroughly investigated by the police
and once the final report had been
submitted in favour of the petitioner and
further whole departmental inquiry was
made in violation to natural justice, then
what is left to be considered and
examined by this Court as to whether
punishment imposed was commensurate
with the said charges.
15. Learned counsel for the
petitioner has relied upon the judgment
passed in State of U.P. Vs. Shatrughan
Lal and another, AIR 1998 SC 3038. For
ready reference, paragraph Nos. 4, 5, 6, 7,
9 & 10 are reproduced herein below:-
"4. Now, one of the principles of
natural justice is that a person against
whom an action is proposed to be taken has
to be given an opportunity of hearing. this
opportunity
has
to
be
an
effective
opportunity and not a mere pretence. In
departmental proceedings where chargesheet is issued and the documents which are
proposed to be utilised against that person
are indicated in the charge sheet but copies
thereof are not supplied to him in spite of his
request, and he is, at the same time, called
upon to submit his reply, it cannot be said
that an effective opportunity to defend was
provided to him. (see: Chandrama Tewari
vs. Union of India 1987 (Supp.) SCC 518:
AIR 1988 SC 177; Kashinath Dikshita vs.
Union of India & Ors. 1986 (3) SCC 229:
AIR 1986 SC 2118; State of Uttar Pradesh
vs. Mohd. Sharif (1982) 2 SCC 376: AIR
1982 SC 937).
5. In High Court of Punjab &
Haryana vs. Amrik Singh 1995 (Supp.) 1
SCC 321, it was indicated that the
delinquent officer must be supplied copies
of documents relied upon in support of the
charges. It was further indicated that if
the documents are voluminous and copies
cannot be supplied, then such officer must
be given an opportunity to inspect the
same, or else, the principles of natural
justice would be violated.
6. Preliminary inquiry which is
conducted invariably on the back of the
delinquent
employee
may,
often,
constitute the whole basis of the chargesheet. Before a person is, therefore, called
upon to submit his reply to the charge
sheet, he must, on a request made by him
in that behalf, be supplied the copies of
the statements
of witnesses recorded
during
the
preliminary
enquiry
particularly
if
those
witnesses
are
proposed
to
be
examined
at
the
departmental trial. This principle was
reiterated in Kashinath Dikshita vs.
446
 INDIAN LAW REPORTS ALLAHABAD SERIES
Union of India & Ors. (1986) 3 SCC 229
(supra), wherein it was also laid down
that
this
lapse
would
vitiate
the
departmental proceedings unless it was
shown and established as a fact that nonsupply of copies of those document in his
defence.
7. Applying the above principles to
the instant case, it will be seen that the
copies of the documents which were
indicated in the charge sheet to be relied
upon as proof in support of articles of
charges were not supplied to the
respondent nor was any offer made to him
to inspect those documents.
9. This paragraph of the written
statement contains an admission of the
appellant that copies of the documents
specified in the charge sheet were not
supplied to the respondent as the
respondent had every right to inspect
them at any time. This assertion clearly
indicates that although it is admitted that
the copies of the documents were not
supplied to the respondent and although
he had the right to inspect those
documents, neither were the copies given
to him nor were the records made
available to him for inspection. If the
appellant did not intend to give copies of
the documents to the respondent, it should
have been indicated to the respondent in
writing that he may inspect those
documents.
Merely
saying
that
the
respondent could have inspected the
documents at any time is not enough. He
has to be informed that the documents, of
which the copies were asked for by him
may be inspected. The access to record
must be assured to him.
10. It has also been found that
during the course of the preliminary
enquiry, a number of witnesses were
examined against the respondent in his
absence, and rightly so, as the delinquents
are not associated in the preliminary
enquiry, and thereafter the charge sheet
was drawn up. The copies of those
statements, though asked for by the
respondent, were not supplied to him.
Since there was a failure on the part of
the appellant in this regard too, the
principles of natural justice were violated
and the respondent was not afforded an
effective
opportunity
of
hearing,
particularly as the appellant failed to
establish that non-supply of the copies of
statements recorded during preliminary
enquiry had not caused any prejudice to
the respondent in defending himself. "
16. Learned counsel for the
petitioner has also relied upon the
judgment passed in Hardwari Lal. Vs.
State of U.P. and others, AIR 2000 SC
277. For ready reference, paragraph Nos.
3 & 5 are reproduced herein below:-
3. Before us the sole ground urged is
as to the non-observance of the principles
of natural justice in not examining the
complainant, Shri Virender Singh, and
witness, Jagdish Ram. The Tribunal as
well as the High Court have brushed
aside the grievance made by the appellant
that the non-examination of those two
persons
has
prejudiced
his
case.
Examination of these two witnesses would
have revealed as to whether the complaint
made by Virender Singh was the best
person to speak to its veracity. So also,
Jagdish Ram, who had accompanied the
appellant to the hospital for medical
examination,
would
have
been
an
important witness to prove the state or the
condition of the appellant. We do no think
the Tribunal and the High Court were
justified in thinking that non-examination
of these two persons could not be
material. In these circumstances, we are
1 All] Hansaram Mishra Vs. State of U.P. & Ors.
447
of the view that the High Court and the
Tribunal
erred
in
not
attaching
importance to this contention of the
appellant.
5. In the circumstances, we are
satisfied that there was no proper enquiry
held by the authorities and on this short
ground we quash the order of dismissal
passed against the appellant by setting
aside the order made by the High Court
affirming the order of the Tribunal and
direct that the appellant be reinstated in
service. Considering the fact of long lapse
of time before the date of dismissal and
reinstatement, and no blame can be pout
only on the door of the respondents, we
think it appropriate to award 50 per cent
of the back salary being payable to the
appellant. We thus allow the appeal, filed
by the appellant. However, there shall be
no order as to costs.
17. In the case of State of U.P. v.
Ramakant Yadav, 2003 (1) AWC 84 (SC)
; 2002 (3) UPLBEC 2799, the Supreme
Court reversed the order of the High
Court whereby the punishment had been
reduced to reinstatement in service on
payment of 50% of back wages with a
warning to the delinquent, and held that
the High Court ought not to have
Interfered
with
the
quantum
of
punishment in the facts of that case. The
Supreme Court in the case of State of U.P.
v. Ashok Kumar Singh, AIR 1996 SC
736, held that where the employee had
absented himself from duty without leave
on several occasions, the High Court was
not correct in holding that his absence
from duty would not amount to such a
great charge so as to impose the penalty
of dismissal from service.
18. On the contrary the Apex Court
in the case of Ranjit Thakur v. Union of
India and Ors., AIR 1987 SC 2386, has
held that "the question of the choice and
quantum of punishment is within the
Jurisdiction and discretion of the CourtMartial. But the sentence has to suit the
offence and the offender. It should not be
vindictive or unduly harsh. It should not
be so disproportionate to the offence as to
shock the conscience and amount in itself
to conclusive evidence of bias. The
doctrine of proportionality, as part of the
concept of judicial review, would ensure
that even on an aspect which is,
otherwise, within the exclusive province
of the Court-Marital, if the decision of the
Court even as to sentence is an outrageous
defiance of logic, then the sentence would
not
be
immune
from
correction.
Irrationality and perversity are recognized
grounds of judicial review."
19. In the case of Union of India and
others v. Giriraj Sharma, AIR 1994 SC
215, the Apex Court held that overstaying of leave subsequent to the order of
rejection of application for extension of
leave could not be considered to be a
sever
enough
charge
to
warrant
punishment of dismissal from service and
the same was held to be harsh and
disproportionate. A Division Bench of
this Court in the case of Harpal Singh v.
State Public Services Tribunal, Lucknow
and Ors. 2000 (2) AWC 1075 : 2000 (86)
FLR 334, held that where it was on
account of negligence of the constable of
the G.R.P. that one passenger was
misbehaved with and was murdered, the
same could not be a case of serious
misconduct and held that the punishment
of dismissal from service was totally
disproportionate to the offence and thus
directed reinstatement of the employee in
service, with half back wages and also
ordered that he be given a severe warning.
448
 INDIAN LAW REPORTS ALLAHABAD SERIES
Further, in the case of Alexandar Pal Singh
v. Divisional Operating Superintendent,
1987 (2) ATC 922 (SC), the Supreme Court
held that ordinarily the Court or Tribunal
cannot interfere with the discretion of the
punishing authority in imposing particular
penalty but this rule has an exception. If the
penalty imposed is grossly disproportionate
with the misconduct committed, then the
Court can interfere. The railway employee
on being charged with negligence in not
reporting to the railway hospital for treatment
was removed from service. The Supreme
Court found it fit to interfere with the
punishment of removal from service and
modified
it
to
withholding
of
two
Increments.
20. A Division Bench of this Court
in the case of Suresh Kumar Tiwari v.
D.I.G., P.A.C. and Anr., 2001 (4) AWC
2630, 2002 Lab IC 259, has, while
reiterating the view of the Supreme Court,
held that the High Court normally does
not interfere with the quantum of
punishment unless the punishment shocks
the conscience of the Court.
21. In the light of the law laid down
by the Apex Court as well as this Court,
in my view the broad principle which
emerges is that normally, it is the
disciplinary authority which should be
best left with the duty of imposing the
punishment after considering the facts and
circumstances of the case. However, it is
well settled that in case, if on the admitted
facts, the punishment imposed is grossly
disproportionate to the offence, which
shocks the conscience of the Court, the
Court has the power and jurisdiction to
interfere with the punishment imposed.
22. Considering the facts and
circumstances of the case, the punishment
awarded to the petitioner of dismissal
from service is too harsh and totally
disproportionate to the charges, for which
he had been found guilty. The punishment
of dismissal from service are resorted
only if there is very grave misconduct.
The punishment from dismissal from
service imposed on the petitioner is too
harsh and is liable to be set-aside.
23. Accordingly, the impugned
order
dated
15.07.2013
passed
by
respondent No. 3 and order dated
01.08.1994 passed by the respondent No.
1 cannot be sustained and are quashed.
24. In view of above, the writ
petition is allowed with the direction to
the respondents concerned to pay to the
petitioner half of the salary since removal
from the department on basis of no work
no pay and further respondents to pay
entire arrears within two months time
from the date of production of a certified
copy of this order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2015
BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.
Writ-C No. 46759 of 2014
Mohd. Wazid
 ...Petitioner
Versus
The Presiding Officer Cen. Govt. & Anr.
...Respondents
Counsel for the Petitioner:
Sri
Ranjeet
Asthana,
Sri
Abhishek
Srivastava
Counsel for the Respondents:
Sri Anadi Krishna Narayana, Sri Ashok Kr.
Lal