# Hari Om Rastogi / v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 386
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Special Appeal No. 489 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-om-rastogi-v-state-of-u-p-ors-48777
- **Pages:** 10

## Headnote

Sri Ankit Gaur, State Law Officer

A. Service Law - Disciplinary enquiry -
Punishment of major penalty - Obligation
of enquiry officer - Burden to adduce
evidence, on whom lie - Principle laid
down - In a disciplinary inquiry, which
may lead to imposition of major penalty, it
is the obligation of the establishment to
fix a date, time and place for the inquiry.
It is then their obligation to ensure that
evidence,
which
must
include
oral
evidence also, is produced before the
Inquiry
Officer
on
behalf
of
the
establishment whether the delinquent
employee appears to defend or remains ex
parte
-
The
burden
is
on
the
establishment
to
adduce
evidence,
including oral evidence to establish the
charge, on the basis of which a major
penalty may be imposed. (Para 18)
B. Service Law - Disciplinary proceeding -
Charge of passing judicial order to extend
undue benefit to someone - A wrong
decision, how far can be a basis of
disciplinary proceeding - Punishment -
Penalty of 50% reduction of pension and
50% reduction of gratuity - Inquiry
officer sat over the judicial order like an
appellate authority - Validity challenged -
Held, a mere wrong decision or a wrong
order passed by an Officer, acting in a
quasi judicial or judicial capacity, cannot
be the basis of disciplinary action against
him - Zunjarrao Bhikaji Nagarkar's case
relied upon. (Para 22)
Special Appeal allowed. (E-1)
List of Cases cited:-

## Text

386 INDIAN LAW REPORTS ALLAHABAD SERIES
blood was collected by the I.O. and two empty
cartridges (12 bore) recovered. After resorting
to firing, accused Hari Shankar assaulted P.W.-
2 with lathi on his head, duly corroborated by
the medical examination report. The appellants
weilded gadasa to assault but injury was not
caused. The prosecution version has been
supported by ocular witnesses of which some
are injured, Baba @ Digvijay P.W.-3 is an
independent witness. The assailants are known
to
the
prosecution
witnesses.
P.W.-1
categorically stated that there is no personal
enmity with the accused. The site of incident is
illuminated, duly corroborated by the ocular
witness and the I.O. The spot of incident is duly
identified by the prosecution witnesses. The
deceased and the injured suffered gun shot
injury caused by pellets. I.O. categorically
stated that pellet marks on wall of the house of
P.W.-1 was seen. On cumulative scrutiny of the
ocular witness account, duly corroborated by
the medical report, post mortem report and the
site map, the only possible view is the guilt of
the accused in commission of the offence.

68. In our considered opinion, having
regard to the prosecution case setup in the FIR
and the testimony of the prosecution witnesses,
including the injured witness, stands duly
corroborated by the injury report, post-mortem
report and site plan. The perversity in the
finding reached by the trial court on all counts is
writ large. No two opinion can be formed
except that leading to guilt of the accused in
commission of the offence. The trial court has
totally ignored the basic principles with regard
to reading and examination of the testimony of
ocular witness account and has gone over board
in acquitting the appellants.

69. Accordingly, the trial court judgment
and order dated 05.09.1985 is set aside; the
respondent-accused are held guilty for the
offence under Section 302 read with 149 I.P.C.
Consequently, the respondent-accused Ram
Naresh, Devendra and Virendra are sentenced
under Section 302 read with 149 I.P.C. to life
imprisonment and fine at Rs. 50,000/- is
imposed on each accused, in case of default the
accused-respondents to undergo two years
further rigorous imprisonment.

70. Government appeal is, accordingly,
allowed.

71. The benefit of set-off under section
428 Cr.P.C. to be extended to the accusedrespondents.

72. The accused-respondents are on bail,
the accused-respondents shall be taken into
custody, forthwith, to serve out the sentence
awarded to each of them.

73. The Registry to send copy of this
order to Chief Judicial Magistrate and Senior
Superintendent of Police, District Varanasi, to
ensure compliance and shall send a report to
this Court within one month.

74. The Registry to return the lower court
record along with this order for compliance and
necessary action.
----------
(2022) 8 ILRA 386
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 489 of 2022

Hari Om Rastogi ...Petitioner/Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Kshitij Shailendra
8 All. Hari Om Rastogi Vs. State of U.P. & Ors.
387
Counsel for the Respondents:
Sri Ankit Gaur, State Law Officer

A. Service Law - Disciplinary enquiry -
Punishment of major penalty - Obligation
of enquiry officer - Burden to adduce
evidence, on whom lie - Principle laid
down - In a disciplinary inquiry, which
may lead to imposition of major penalty, it
is the obligation of the establishment to
fix a date, time and place for the inquiry.
It is then their obligation to ensure that
evidence,
which
must
include
oral
evidence also, is produced before the
Inquiry
Officer
on
behalf
of
the
establishment whether the delinquent
employee appears to defend or remains ex
parte
-
The
burden
is
on
the
establishment
to
adduce
evidence,
including oral evidence to establish the
charge, on the basis of which a major
penalty may be imposed. (Para 18)
B. Service Law - Disciplinary proceeding -
Charge of passing judicial order to extend
undue benefit to someone - A wrong
decision, how far can be a basis of
disciplinary proceeding - Punishment -
Penalty of 50% reduction of pension and
50% reduction of gratuity - Inquiry
officer sat over the judicial order like an
appellate authority - Validity challenged -
Held, a mere wrong decision or a wrong
order passed by an Officer, acting in a
quasi judicial or judicial capacity, cannot
be the basis of disciplinary action against
him - Zunjarrao Bhikaji Nagarkar's case
relied upon. (Para 22)
Special Appeal allowed. (E-1)
List of Cases cited:-
1. St. of U. P. & ors. Vs Saroj Kumar Sinha;
(2010) 2 SCC 772
2. Roop Singh Negi Vs P.N.B, & ors.; (2009) 2
SCC 570
3. St. of U.P. Vs Aditya Prasad Srivastava &
anr.; 2017 (2) ADJ 554 (DB) (LB)
4. Zunjarrao Bhikaji Nagarkar Vs U.O.I. & ors.;
(1999) 7 SCC 409
5. U.O.I. & ors. Vs Duli Chand; (2006) 5 SCC
680
6. U.O.I. & ors. Vs K.K. Dhawan; (1993) 2 SCC
56
7. Ramesh Chander Singh Vs High Court of
Allahabad & anr.; (2007) 4 SCC 247
(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. This is an appeal by the writ
petitioner, who met with partial success
before the learned Single Judge. He wants
this Court to allow the writ petition in toto,
modifying the judgment of the learned
Judge.

2. The petitioner-appellant was a
Consolidation Officer. On 09.11.2006,
while posted at Agra, he was served with a
charge sheet in relation to certain judicial
orders that he had made in the year 2003 at
Farrukhabad. The learned Single Judge has
quoted the charges in the judgment
impugned, but it would be pertinent to
reproduce
some
more
details
and
particulars carried in the charge sheet dated
09.11.2006, besides just the content of the
charges. Charges Nos.1 and 2, as set out in
the charge sheet, together with the
reference to evidence, by which these were
sought to be established, are extracted
below:

"आरतप संख्या-1

आपने
ग्राम
मौधा
जनपद
फर्रयखाबाद के वाद संख्या-592 धारा 9अ में पाररत
आदेश भदनांक 28-2-03 द्वारा ग्राम मौधा के गाटा
संख्या-1285/0-60/1420/2-00 से ग्राम सिा का
नाम खाररज करके अनार भसंह पुत्र परशुराम का
नाम दजय भकया। तदतपरान्त भनयम 109 के
388 INDIAN LAW REPORTS ALLAHABAD SERIES
अन्तगयत वाद संख्या-198 तारीख फैसला 18-1003 में पाररत आदेशानुसार उक् आदेश का
अमलदरामद करा भदया। भजससे ग्राम सिा
सम्पभि कत अपूर्णीय क्षभत व श्री अनार भसंह पुत्र
परशुराम कत अनुभचत लाि पहुँचा, भजसके भलये
आप दतषी है तथा इस कृत्य से आपकी सत्यभनष्ठा
संभदग्ध हतती है।

उक् आरतप की पुभष्ट् में भनम्न साक्ष्य
पठनीय है।

1- ग्राम मौधा वाद संख्या-592 अन्तगयत
धारा-9अ भदनांक 28-2-03।

2- ग्राम मौधा मुकदमा नं0-198/2003
भनयम 109 में पाररत आदेश भदनांक 18-10-03

3-
बन्दतबस्तअभधकारी
चकबन्दी
फर्रयखाबाद का पत्रांक 486/भव0का0 भद0 17-6-06

आरतप संख्या-2

ग्राम भबढैल के वाद संख्या-1405
अन्तगयत धारा-9 क ता0फै0 2-4-98 द्वारा ग्राम
सिा के गाटा संख्या-374/0.70, 424/0.36,
426/0.67 कुल 1.73 एकड़ से नाम खाररज करके
श्री देवेन्द्र कुमार भमश्रा, चकबन्दी अभधकारी द्वारा
श्री फेर्र भसंह पुत्र जौहरी नाम दजय करने का
अभनयभमत आदेश पाररत भकया था। आपने वाद
संख्या-191 अन्तगयत धारा-109 में पाररत आदेश
भदनांक 28-10-03 द्वारा अमलदरामद करा भदया।
भजससे ग्राम सिा कत अपूर्णीय क्षभत हई तथा
व्यस्क् भवशेष कत अनुभचत लाि पहुँचा। भजसके
भलये आप दतषी है। तथा इस कृत्य से आपकी
सत्यभनष्ठा संभदग्ध हतती है।"

उक् आरतप की पुभष्ट् में भनम्न साक्ष्य
पठनीय है।

1- ग्राम भबढैल वाद संख्या-191 भनयम
101 में पाररत आदेश भदनांक 28-10-03।

2-
बन्दतबस्तअभधकारी
चकबन्दी
फर्रयखाबाद का पत्रांक-486/भव0का0 भद0 17-606"

3. It is the petitioner-appellant's case
that after service of the charge sheet, he was
neither
provided
documents
that
he
demanded nor any oral evidence recorded on
behalf of the establishment by examining
witnesses. The petitioner-appellant too was
not examined and the inquiry report was
submitted ex parte on 09.08.2007 by the
Inquiry Officer, the Deputy Director of
Consolidation, Etawah to the Disciplinary
Authority, the Consolidation Commissioner,
U.P., Lucknow.

4. A show cause notice was issued on
09.10.2007 by the Disciplinary Authority to
the petitioner-appellant. asking him to show
cause that the charges being proved, why
major penalty should not be imposed upon
him. A time period of 15 days was granted to
answer
the
show
cause
notice.
On
15.11.2007, the petitioner-appellant filed a
detailed reply to the show cause, asserting
that both the charges against him were not
established.

5.

The
petitioner-appellant
superannuated while posted at Rampur on
30.04.2008 and retired from service. On
the 9th of July, 2008 after retirement, the
petitioner-appellant
was
served
with
another show cause notice based on the
existing inquiry report, requiring him to
answer why the penalty of 50% reduction
of pension and 50% deduction of gratuity
be not awarded. The reply was again
demanded within 15 days. The petitionerappellant
submitted
a
reply
dated
29.07.2008, disputing the truth of the
charges as well as the fact that these were
proved.

6. The respondents proceeded to
punish the appellant by means of an order
dated 03.08.2012, by which it was ordered
that there would be a 10% of permanent
reduction in pension payable and 50%
deduction, each from the pension and the
gratuity.
8 All. Hari Om Rastogi Vs. State of U.P. & Ors.
389

7. The petitioner-appellant challenged
the order dated 03.08.2012 by instituting
Writ - A No.61226 of 2012 before the
learned Single Judge. The aforesaid writ
petition was partly allowed by the learned
Single Judge holding the charges proved,
but there was no evidence to hold that the
orders were passed to extend undue benefit
to anyone or the appellant's integrity was
doubtful. It was also held that pecuniary
loss, if any, caused to the Gaon Sabha, was
not quanitified. The appellant was held to
be guilty of not following the due process
while passing orders in the cases, subject
matter of the two charges. It was also held
that the appellant's reply was vague and
without any legal basis.

8. In the circumstances, the learned
Judge
proceeded
to
hold
that
the
punishment awarded to the appellant was
very harsh and shockingly disproportionate.
In consequence of the aforesaid conclusion,
the impugned order of punishment dated
03.08.2012 has been set aside with a
remand to the respondents to pass a fresh
order of punishment, after considering the
remarks in the judgment entered by the
learned Single Judge.

9.

The
petitioner-appellant,
dissatisfied with the judgment impugned,
has preferred this appeal under Chapter
VIII Rule 5 of the Rules of Court.

10. Heard Mr. Kshitij Shailendra,
learned Counsel for the petitioner-appellant
and Mr. Ankit Gaur, learned State Law
Officer appearing for the State-respondents.

11. Before us, Mr. Kshitij Shailendra,
learned Counsel for the appellant has
contended that the learned Single Judge has
gone wrong in that, that on one hand his
Lordship has accepted the appellant's
contention that the Inquiry Officer and the
Disciplinary Authority have scrutinized the
appellant's judicial orders, like an Appellate
Authority, which they could not have done,
and on the other, has upheld the charges,
interfering with the order of punishment
alone. It is submitted by the learned
Counsel for the appellant that once the
learned Judge was of opinion that the
Inquiry Officer
and the Disciplinary
Authority could not have scrutinized the
appellant's judicial orders in disciplinary
proceedings, as if they were the Appellate
Authority, the logical consequence is that
the charges are not established. It is
submitted that the order of punishment, on
the findings recorded by the learned Single
Judge, ought to have been quashed in toto;
not
just
the
part
thereof,
inflicting
punishment on the issue of quantum.

12. Mr. Ankit Gaur, the learned State
Law Officer, appearing for the State, on the
other hand, has argued that the learned
Single Judge has passed the impugned
judgment in accordance with law, as it was
not open to his Lordship in a writ petition,
to interfere with the findings recorded by
the Inquiry Officer and accepted by the
Disciplinary Authority.

13. We have carefully considered the
rival contentions at the Bar, perused the
order impugned and the record.

14. Indeed, the learned Single Judge
has recorded definitive findings holding the
charges not proved due to procedural flaws
that go to the root of the matter. In this
regard, the findings of the learned Single
Judge are extracted below:

21. I have carefully perused the
inquiry report. The inquiry officer has dealt
in the inquiry as to how due procedure was
390 INDIAN LAW REPORTS ALLAHABAD SERIES
not followed by the petitioner and that
required precautions were not adhered to. I
found merit in the argument of learned
counsel for petitioner that Inquiry Officer
has scrutinized the orders like an Appellate
Authority and not like an Inquiry Officer.
The finding of loss are not supported by
any evidence or valuation of land. No
witness was examined from Gram Sabha. It
was also not noticed by Inquiry Officer that
one order was passed only in compliance of
an earlier order. The record was not
verified in absence of original record which
remained untraceable. The Inquiry Officer
has proceeded with inquiry like an
Appellate Authority and failed to decide
whether
any
grave
misconduct
was
committed or any pecuniary loss was
caused to Gaon Sabha.

15. Interestingly, the aforesaid finding
has been recorded by the learned Single
Judge on the supposition that the charges
stand proved, but if at all these would fall
under 'grave misconduct', or an act causing
pecuniary loss to the Government, by
misconduct or negligence during service.

16. We are of opinion that the kind of
finding, recorded in Paragraph No. 21 of the
impugned judgment, is one that relates to the
proof
of
the
charges
and
not
the
proportionality of punishment. The learned
Single Judge, however, has recorded the
finding, extracted above, while considering
the issue that is set out in Paragraph No.16 of
the impugned judgment, which reads:

16. Now, I proceed to consider the
second issue that, "whether charges were
proved against petitioner and punishment
thereon is proportionate or not?"

17. The question of proportionality of
punishment in disciplinary proceedings is to
be considered if the charges are proved in the
disciplinary
proceedings
strictly
in
accordance with law. Once the learned Single
Judge has held, and in our opinion rightly so,
that it was not the business of the Inquiry
Officer or the Disciplinary Authority to
scrutinize the appellant's order passed in a
judicial capacity, like an Appellate Authority,
the findings on the charges by the Inquiry
Officer and its acceptance by the Disciplinary
Authority, are bad in law.

18. The other issue that the learned
Single Judge has dealt with is the nonexamination
of
witnesses
by
the
respondents to prove the charge. There is
brief remark by the learned Judge that "no
witness was examined from the Gram
Sabha". This again is a conclusion that is
absolutely right, though not elaborated
upon. However, the consequence of the
aforesaid conclusion is vitiative of the
inquiry
and
the
resultant
order
of
punishment. The principle is that in a
disciplinary inquiry, which may lead to
imposition of major penalty, it is the
obligation of the establishment to fix a
date, time and place for the inquiry. It is
then their obligation to ensure that
evidence, which must include oral evidence
also, is produced before the Inquiry Officer
on behalf of the establishment whether the
delinquent employee appears to defend or
remains ex parte. The burden is on the
establishment
to
adduce
evidence,
including oral evidence to establish the
charge, on the basis of which a major
penalty may be imposed. Though, the
aforesaid principle is too well settled to
brook any doubt, reference may be made to
the decision of the Supreme Court in State
of Uttar Pradesh and others v. Saroj
Kumar Sinha, (2010) 2 SCC 772. In
Saroj Kumar Sinha (supra), the principle
has been stated thus:
8 All. Hari Om Rastogi Vs. State of U.P. & Ors.
391

28. An inquiry officer acting in 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. To the same effect is the
guidance of the Supreme Court in Roop
Singh Negi v. Punjab National Bank
and others, (2009) 2 SCC 570, where it
has been held:

14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon
taking
into
consideration
the
materials brought on record by the
parties. The purported evidence collected
during investigation by the investigating
officer against all the accused by itself
could not be treated to be evidence in the
disciplinary proceeding. No witness was
examined to prove the said documents.
The
management
witnesses
merely
tendered the documents and did not prove
the contents thereof. Reliance, inter alia,
was placed by the enquiry officer on the
FIR which could not have been treated as
evidence.

20. The principle has been more
eloquently stated in the decision of a
Division Bench of this Court in State of
U.P. v. Aditya Prasad Srivastava and
another, 2017 (2) ADJ 554 (DB) (LB).
In Aditya Prasad Srivastava (supra), it
has been held:

17. It is trite law that the
departmental proceedings are quasi judicial
proceedings. The Inquiry Officer functions
as quasi judicial officer. He is not merely a
representative of the department. He has to
act as an independent and impartial officer
to find out the truth. The major punishment
awarded to an employee visit serious civil
consequences and as such the departmental
proceedings ought to be in conformity with
the principles of natural justice. Even if, an
employee prefers not to participate in
enquiry the department has to establish the
charges against the employee by adducing
oral as well as documentary evidence. In
case charges warrant major punishment
then the oral evidence by producing the
witnesses is necessary.

 (emphasis by Court)

21. There is no cavil here that the
respondents did not examine witnesses or
led oral evidence to prove the charges
against the appellant. The charges were
held proved, on the basis of the Inquiry
Officer going through the records, that may
constitute material, but not evidence in the
absence of proof by oral evidence. The
learned Single Judge has also held that no
witness was examined from the Gaon
Sabha. Thus, the inquiry that has led to the
impugned order of punishment is beset by a
fundamental procedural flaw, that goes to
the root of the matter, on account of nonproduction of evidence, particularly oral
evidence before the Inquiry Officer by the
establishment.
392 INDIAN LAW REPORTS ALLAHABAD SERIES

22. There are then those remarks by
the learned Single Judge, where it is said
that the Inquiry Officer has sat over judicial
orders passed by the appellant, like an
Appellate Authority, and on that basis, held
the charges proved. This approach of the
Inquiry Officer
and the Disciplinary
Authority has been certainly disapproved
by the learned Single Judge and rightly so.
It has been remarked by the learned Single
Judge that there is no evidence that orders
were passed to give undue benefit to
someone, or that the integrity of the
appellant was doubtful. It must be observed
that a mere wrong decision or a wrong
order passed by an Officer, acting in a
quasi judicial or judicial capacity, cannot
be the basis of disciplinary action against
him. In this connection, reference may be
made to the decision of the Supreme Court
in Zunjarrao Bhikaji Nagarkar v. Union
of India and others, (1999) 7 SCC 409,
where it has been held:

40. When we talk of negligence
in a quasi-judicial adjudication, it is not
negligence
perceived
as
carelessness,
inadvertence or omission but as culpable
negligence. This is how this Court in State
of Punjab v. Ex-Constable Ram Singh
[(1992) 4 SCC 54 : 1992 SCC (L&S) 793 :
(1992)
21
ATC
435]
interpreted
"misconduct" not coming within the
purview of mere error in judgment,
carelessness or negligence in performance
of duty. In the case of K.K. Dhawan
[(1993) 2 SCC 56 : 1993 SCC (L&S) 325 :
(1993) 24 ATC 1] the allegation was of
conferring
undue
favour
upon
the
assessees. It was not a case of negligence as
such. In Upendra Singh case [(1994) 3 SCC
357 : 1994 SCC (L&S) 768 : (1994) 27
ATC 200] the charge was that he gave
illegal and improper directions to the
assessing officer in order to unduly favour
the assessee. The case of K.S. Swaminathan
[(1996) 11 SCC 498] was not where the
respondent was acting in any quasi-judicial
capacity. This Court said that at the stage of
framing of the charge the statement of facts
and the charge-sheet supplied are required
to be looked into by the court to see
whether they support the charge of the
alleged misconduct. In M.S. Bindra case
[(1998) 7 SCC 310 : 1998 SCC (L&S)
1812]
where
the
appellant
was
compulsorily retired this Court said that
judicial scrutiny of an order imposing
premature
compulsory
retirement
is
permissible if the order is arbitrary or mala
fide or based on no evidence. Again in the
case of Madan Mohan Choudhary [(1999)
3 SCC 396 : 1999 SCC (L&S) 700] which
was also a case of compulsory retirement
this Court said that there should exist
material on record to reasonably form an
opinion that compulsory retirement of the
officer was in public interest. In K.N.
Ramamurthy case [(1997) 7 SCC 101 :
1997 SCC (L&S) 1749] it was certainly a
case of culpable negligence. One of the
charges was that the officer had failed to
safeguard
government
revenue.
In
Hindustan Steel Ltd. case [(1969) 2 SCC
627 : AIR 1970 SC 253] it was said that
where
proceedings
are
quasi-judicial
penalty will not ordinarily be imposed
unless the party charged had acted
deliberately in defiance of law or was
guilty
of
conduct
contumacious
or
dishonest or acted in conscious disregard of
its obligation. This Court has said that the
penalty will not also be imposed merely
because it is lawful so to do. In the present
case, it is not that the appellant did not
impose penalty because of any negligence
on his part but he said it was not a case of
imposition of penalty. We are, however, of
the view that in a case like this which was
being adjudicated upon by the appellant
8 All. Hari Om Rastogi Vs. State of U.P. & Ors.
393
imposition of penalty was imperative. But
then, there is nothing wrong or improper on
the part of the appellant to form an opinion
that
imposition
of penalty
was not
mandatory. We have noticed that the Patna
High Court while interpreting Section 325
IPC held that imposition of penalty was not
mandatory which again we have said is not
a
correct
view
to
take.
A
wrong
interpretation of law cannot be a ground for
misconduct. Of course it is a different
matter altogether if it is deliberate and
actuated by mala fides.

41. When penalty is not levied,
the assessee certainly benefits. But it
cannot be said that by not levying the
penalty the officer has favoured the
assessee or shown undue favour to him.
There has to be some basis for the
disciplinary authority to reach such a
conclusion even prima facie. The record in
the present case does not show if the
disciplinary authority had any information
within its possession from where it could
form an opinion that the appellant showed
"favour" to the assessee by not imposing
the penalty. He may have wrongly
exercised his jurisdiction. But that wrong
can be corrected in appeal. That cannot
always
form
a
basis
for
initiating
disciplinary proceedings against an officer
while he is acting as a quasi-judicial
authority. It must be kept in mind that
being a quasi-judicial authority, he is
always subject to judicial supervision in
appeal.

42.
Initiation
of
disciplinary
proceedings against an officer cannot take
place on information which is vague or
indefinite. Suspicion has no role to play in
such matter. There must exist reasonable
basis for the disciplinary authority to
proceed against the delinquent officer.
Merely because penalty was not imposed
and the Board in the exercise of its power
directed filing of appeal against that order
in the Appellate Tribunal could not be
enough to proceed against the appellant.
There is no other instance to show that in
similar case the
appellant invariably
imposed penalty.

43. If every error of law were to
constitute a charge of misconduct, it would
impinge upon the independent functioning
of quasi-judicial officers like the appellant.
Since in sum and substance misconduct is
sought to be inferred by the appellant
having committed an error of law, the
charge-sheet on the face of it does not
proceed on any legal premise rendering it
liable to be quashed. In other words, to
maintain any charge-sheet against a quasijudicial authority something more has to be
alleged than a mere mistake of law, e.g., in
the
nature
of
some
extraneous
consideration influencing the quasi-judicial
order. Since nothing of the sort is alleged
herein the impugned charge-sheet
is
rendered illegal. The charge-sheet, if
sustained, will thus impinge upon the
confidence and independent functioning of
a quasi-judicial authority. The entire
system
of
administrative
adjudication
whereunder
quasi-judicial
powers
are
conferred on administrative authorities,
would fall into disrepute if officers
performing such functions are inhibited in
performing their functions without fear or
favour because of the constant threat of
disciplinary proceedings.

23. The decision in Nagarkar's case
was held in Union of India and others v.
Duli Chand, (2006) 5 SCC 680 as one that
was contrary to the view expressed in
Union of India and others v. K.K.
Dhawan, (1993) 2 SCC 56. But again, the
principle in Nagarkar was endorsed in a
later Three Judge Bench decision of the
Supreme Court in Ramesh Chander Singh
394 INDIAN LAW REPORTS ALLAHABAD SERIES
v. High Court of Allahabad and another,
(2007) 4 SCC 247, where it has been held:

17.
In
Zunjarrao
Bhikaji
Nagarkar v. Union of India [(1999) 7 SCC
409 : 1999 SCC (L&S) 1299 : AIR 1999
SC 2881] this Court held that wrong
exercise of jurisdiction by a quasi-judicial
authority or mistake of law or wrong
interpretation of law cannot be the basis for
initiating
disciplinary
proceeding.
Of
course, if the judicial officer conducted in a
manner as would reflect on his reputation
or integrity or good faith or there is a prima
facie material to show recklessness or
misconduct in discharge of his duties or he
had acted in a manner to unduly favour a
party or had passed an order actuated by
corrupt motive, the High Court by virtue of
its power under Article 235 of the
Constitution may exercise its supervisory
jurisdiction.
Nevertheless,
under
such
circumstances it should be kept in mind
that the Judges at all levels have to
administer justice without fear or favour.
Fearlessness and maintenance of judicial
independence are very essential for an
efficacious judicial system. Making adverse
comments against subordinate judicial
officers and subjecting them to severe
disciplinary proceedings would ultimately
harm the judicial system at the grassroot
level.

24. In the present case, the charge
against the appellant is about passing
orders directing mutation on the basis of
earlier orders, where original record had
remained untraceable. He has passed an
order of mutation i.e. subject of the first
charge, acting on a copy of the order
passed 10-12 years ago, where the
records are said to have been destroyed
by fire. The order, subject matter of the
other charge, was also passed in haste,
without taking precautions. But, none of
the orders, as the learned Single Judge
has held on perusal of records, were
evidently passed to extend any undue
benefit to anyone nor the appellant's
integrity was proved doubtful.

25. In our opinion, the learned
Single Judge has fallen into an error in
upholding the charges in the first limb of
the order and then recording findings in
reference to the quantum of punishment,
that go to vitiate the findings of the
Inquiry Officer and the impugned order
made by the Disciplinary Authority. The
kind of flaws that the learned Single
Judge has discerned in the process of the
inquiry and the approach of the Inquiry
Officer, including the orders of the
Disciplinary Authority, the findings of
the Inquiry Officer and the impugned
order adjudging the appellant guilty, had
to be quashed. However, the learned
Single Judge has upheld the charges and
merely opined the punishment imposed to
be shockingly disproportionate. We find
that the findings recorded by the learned
Single Judge are at variance with his
conclusions. The findings recorded by the
learned
Single
Judge
regarding
the
fundamental flaws in the approach of the
Inquiry
Officer
as
well
as
the
Disciplinary Authority, which we have
elaborated upon, irresistibly lead to the
conclusion that the order passed by the
learned Judge must be modified and the
impugned order of punishment quashed.

26. In the result, this appeal succeeds
and is allowed. The impugned judgment
passed by the learned Single Judge is
modified in terms that the impugned order
of punishment dated 03.08.2012 passed by
respondent no.1 is hereby quashed. A
mandamus is issued to the respondents to
8 All. Smt. Rahimun-nisha Vs. State of U.P. & Ors.
395
release the entire retiral benefits due to the
petitioner-appellant along with interest @
6% p.a. from the date the same was due till
payment.
----------
(2022) 8 ILRA 395
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

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

Writ-C No. 1337 of 2021

Smt. Rahimun-nisha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sudheer Rana

Counsel for the Respondents:
C.S.C., Sri Rahul Pandey

A. Constitution of India - Article 23 -
Begar - Recovery of emolument paid for
extra works done - Permissibility - Held,
if the petitioner's husband rendered work
for 10 months, recovery of emoluments
paid for those extra 10 months of work,
would
amount
to
begar,
which
is
prohibited
under
Article
23
of
the
Constitution - For work already rendered
by an employee and remunerated by the
employers, howsoever wrongly appointed
or permitted to continue, cannot be
recovered for that would be begar, applies
with greater force. (Para 14 and 15)
B. Service Law - Retirement - Pension,
Gratuity and Family Pension - Entitlement
- Petitioner's husband worked 10 months
more service and drawn the salary - Effect
on entitlement of pension - Held, the
authorities need not be multiplied which
emphasize the importance of prompt
settlement and quick disbursement of
post retiral benefits, particularly, pension
and gratuity - This would apply with
equal, if not greater, vigour to the case of
a
surviving
spouse/
widow
of
the
deceased government servant/ employee,
like the case here. (Para 19)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Sushil Kumar Pandey Vs St. of U.P. & ors.;
2010 (5) ALJ 554
2. St. of Punjab & ors. Vs Rafiq Masih (White
Washer) & ors.; (2015) 4 SCC 334
3. Thomas Daniel Vs St. of Kerala & ors.; 2022
SCC OnLine SC 536
4. St. of Kerala & ors. Vs M. Padmanabhan Nair;
(1985) 1 SCC 429
5. V. Sukumaran Vs St. of Kerala & anr.; (2020)
8 SCC 106
6. Gorakhpur University & ors. Vs Dr. Shitla
Prasad Nagendra & ors.; (2001) 6 SCC 591
(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner is the widow of a
Class-IV employee, who superannuated
from the services of the Nagar Palika
Parishad, Bindki, District Fatehpur, as a
Daftari on 05.01.1995. She has not been
paid the post retiral benefits due on account
of her husband's services, including family
pension till date. This is the case that the
petitioner has come up with before this
Court, praying for the issue of a mandamus
directing the respondents to sanction and
disburse the post retiral benefits due on
account of her husband's services.

2. Heard Mr. Sudheer Rana, learned
Counsel for the petitioner, Mr. Rahul
Pandey, learned Counsel appearing on
behalf of respondent no.4 and Mr. Vimla
Prasad, the learned Standing Counsel
appearing on behalf of respondent nos. 1, 2
and 3.