# Harish Chandra v. Commissioner, Moradabad Region, Moradabad and others

- **Citation:** (2006) 3 ILRA 1189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-03
- **Case number:** Civil Misc. Writ Petition No.42245 of 2003
- **Bench:** Bharti Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-chandra-v-commissioner-moradabad-region-moradabad-and-others-40669
- **Pages:** 6

## Headnote

Sri Vijendra Singh
S.C.

U.P.
Govt.
Servants
(Discipline
and
Appeal Rules, 1999, Rule-7-Constitution
of India Art. 311 (2)-Dismissal-petitioner
a lekhpal recommend 36 persons-for
allotment of land during consolidation
period-recommendation made on the
basis of Govt. order-out of 36 only 22
persons allotment approved by S.D.O.-
even the dispossession of these alloties
stayed by High Court the authorities who
had
inquired
and
approved-not
subjected to submit their explanation
even-order of major punishment passed
without giving the copy of inquiry report,
the list of witness-without show cause
notice-without oral evidence-held-order
wholly
perverse
punishment
order
quashed-without back wages-conclude
the enquiry after giving full opportunity
till
the
conclusion
of
disciplinary
proceeding
shall
be
treated
under
suspension.

Held: Para 21

There is also substance in the argument
of the petitioner that under the U.P.
Government
Servants
Discipline
and
Appeal Rules, 1999, it was mandatory
that the provisions of Rule 7 should have
been complied with while imposing a
major punishment on the petitioner. Had
it been a case of imposition of minor
punishment, the position would have
been different. But here, in this case,
when the petitioner was visited with the
evil consequences of termination, the
minimum to be observed in the enquiry
was that the petitioner should have been
given the documentary evidence, which
was against him, and also the names of
witnesses should have been revealed in
the charge sheet itself. This was not
done.
2003 (8) SCC-9
2001 (2) UPLBEC-1475
1190 INDIAN LAW REPORT ALLAHABAD SERIES [2006
AIR 1979 SC-1022

## Text

3All] Harish Chandra V. Commissioner, Moradabad Region, Moradabad and others 1189
9. A perusal of the notings on the
back-side of Page 2 of the copy of the
compromise, filed as annexure 1 to the
said
affidavit
accompanying
the
aforementioned application, shows that
the parties have acknowledged having
entered into the said compromise, and the
same has been duly verified by the
learned Civil Judge (Junior Division),
Kasganj, District Etah.

10. In view of the aforesaid, I am of
the opinion that it is in the interest of
justice that the Second Appeal be decided
in terms of the compromise, copy whereof
has been filed as Annexure 1 to the said
affidavit
accompanying
the
aforementioned application.

11.

The
Second
Appeal
is,
accordingly, decided in terms of the
compromise, copy whereof has been filed
as Annexure 1 to the said affidavit
accompanying
the
aforementioned
application. The said compromise will
form part of the decree.

12. The parties will bear their own
costs.
Decided
in
terms
of
compromise.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2006

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No.42245 of 2003

Harish Chandra

...Petitioner
Versus
Commissioner
Moradabad
Region
Moradabad and others ...Respondents

Counsel for the Petitioner:
P.N. Tripathi
Sri P.S. Baghel

Counsel for the Respondents:
Sri Vijendra Singh
S.C.

U.P.
Govt.
Servants
(Discipline
and
Appeal Rules, 1999, Rule-7-Constitution
of India Art. 311 (2)-Dismissal-petitioner
a lekhpal recommend 36 persons-for
allotment of land during consolidation
period-recommendation made on the
basis of Govt. order-out of 36 only 22
persons allotment approved by S.D.O.-
even the dispossession of these alloties
stayed by High Court the authorities who
had
inquired
and
approved-not
subjected to submit their explanation
even-order of major punishment passed
without giving the copy of inquiry report,
the list of witness-without show cause
notice-without oral evidence-held-order
wholly
perverse
punishment
order
quashed-without back wages-conclude
the enquiry after giving full opportunity
till
the
conclusion
of
disciplinary
proceeding
shall
be
treated
under
suspension.

Held: Para 21

There is also substance in the argument
of the petitioner that under the U.P.
Government
Servants
Discipline
and
Appeal Rules, 1999, it was mandatory
that the provisions of Rule 7 should have
been complied with while imposing a
major punishment on the petitioner. Had
it been a case of imposition of minor
punishment, the position would have
been different. But here, in this case,
when the petitioner was visited with the
evil consequences of termination, the
minimum to be observed in the enquiry
was that the petitioner should have been
given the documentary evidence, which
was against him, and also the names of
witnesses should have been revealed in
the charge sheet itself. This was not
done.
2003 (8) SCC-9
2001 (2) UPLBEC-1475
1190 INDIAN LAW REPORT ALLAHABAD SERIES [2006
AIR 1979 SC-1022

(Delivered by Hon'ble Bharati Sapru, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the respondents.

2. This petition has been filed
against orders passed by the respondents
No.1, 2 & 3 dated 6.9.03, 15.4.02 and
30.10.01 which have culminated into
termination of the petitioner who was
working as a Lekhpal with the respondent
State.

3. The petitioner was appointed as
Lekhpal in the year 1987 and was
continued to work in the department
concerned. The petitioner received a show
cause notice on 3.4.2000 stating therein
that on account of certain charges against
him, a disciplinary proceeding was
contemplated. The petitioner submitted
his reply on 5.4.2000. The petitioner was
charge
sheeted
on
5.5.2000
and,
thereafter, a supplementary charge sheet
was also issued against him on 25.5.2000.
The petitioner submitted his reply to the
Enquiry Officer on 14.6.2000 and an
order was passed on 1.7.2000 terminating
the services of the petitioner.

4. The petitioner preferred an appeal
before the District Magistrate, Bijnore on
14.7.2000.
The
District
Magistrate
allowed the appeal of the petitioner by
setting aside the order-dated 1.7.2000 and
made observation that the respondent
No.3 Up Ziladhikari, Nazimabad, District
Bijnore may pass a fresh order by giving a
fresh show cause notice and also may
pass an order that the petitioner would be
treated to be on suspension during that
period.
5.

The
petitioner,
thereafter,
received a fresh show cause notice on
10.1.2001 to which the petitioner gave a
reply on 19.1.2001. The respondents,
thereafter, passed an order on 30.10.2001
again terminating the services of the
petitioner. This is the first order, which is
impugned in the present writ petition. The
petitioner, thereafter, filed an appeal
against this order on 12.11.01. The appeal
was
dismissed
by
the
order-dated
15.4.2002, which is also impugned in the
present writ petition.

6. The petitioner, thereafter, filed a
revision against the impugned order dated
15.4.2002 and the respondent No.1Commissioner rejected the revision of the
petitioner on 15.1.03. The ultimate order
is the order-dated 15.1.03. Learned
counsel for the petitioner has argued that
all the impugned orders are fully perverse
and arbitrary and violative of Article 21
of the Constitution of India as his right to
livelihood is affected by terminating his
services without giving him a proper
enquiry.

7. The petitioner has drawn the
attention of this Court to the revisional
order dated 15.1.03 where the respondent
No.1-the Commissioner recorded that out
of
11
charges
leveled against the
petitioner, seven charges have been found
to be proved but four charges are not
proved. Learned Commissioner in the
revisional order has stated that one of the
most serious charges leveled against the
petitioner was that even though chakbandi
was going on in a village, the petitioner
who was a Lekhpal in that village
recommended the allotment of the land to
35 allottees, out of which, 22 allottees
were subsequently found not to be
genuine persons worthy of allotment.
3All] Harish Chandra V. Commissioner, Moradabad Region, Moradabad and others 1191
Learned counsel for the petitioner Shri
P.S. Baghel has argued that these findings
have been reached by the Commissioner
ignoring
the
material
documentary
evidence filed by the petitioner in its reply
itself, wherein he had clearly disclosed
before
the
Commissioner
that
the
Government had issued a Government
Order on 31.12.2000 by which it had
permitted the allotments to be made even
in villages where chakbandi was going
on.

8. Learned counsel for the petitioner
has argued that this material piece of
evidence was ignored. It was not a case as
if the petitioner had made allotments
against the prevalent rules and orders and,
therefore, the findings reached ignoring
these vital piece of evidence, renders the
findings perverse and, therefore, also the
punishment imposed on the basis of these
findings is also disproportionate.

9. The next argument of learned
counsel for the petitioner is that in such a
case, the Court, while exercising its power
of judicial review, can interfere with the
quantum of punishment.

10. The next argument of the learned
counsel for the petitioner is that in the
present case, the entire chargesheet does
not disclose or attribute any motive of
personal gain against the petitioner. At the
most, the charge can be a charge of
negligence and, therefore, he argues that
such a charge of negligence could not
have lead to the imposition of a major
punishment
such
as
termination
of
service, which deprives him of his very
livelihood. Learned counsel for the
petitioner in support of this argument has
relied in the decision of Dev Singh Vs.
Punjab
Tourisam
Development
Corporation Ltd. and another reported
in (2003) 8 S.C.C.9.

11. The next argument of the learned
counsel for the petitioner was that the
entire enquiry held against the petitioner
was vitiated on account of the fact that the
charge sheet did not either disclose the
documentary
evidence
which
was
proposed to be used against the petitioner
and also did not disclose names of any
witnesses who shall stand testimony
against the petitioner. This, learned
counsel for the petitioner has argued, is in
violation of the rules, which have been
made in the State of U.P. namely, the U.P.
Government Servants Discipline and
Appeal Rules, 1999. He refers in
particular Rule 7 of the Rules, where there
is a mandatory requirement that the
charge sheet must disclose firstly, the
documentary evidence which is to be used
against the delinquent and secondly, it
must disclose the name of witnesses who
are to appear testimony against the
delinquent. Learned counsel for the
petitioner has argued that in this case the
decision has been taken in violation of
Rule 7 of the Rules of 1999. In support of
his decision, learned counsel for the
petitioner has relied on a Division Bench
decision of this Court report in (2001) 2
UPLBEC 1475 in the case Subhash
Chandra Sharma Vs. U.P. Co-operative
Spinning Mills and others wherein this
Court held that in cases where a major
punishment proposed to be imposed, an
oral enquiry is a must, whether the
delinquent makes a request for it or not.
Admittedly, he says, in this case, there
was no oral enquiry.

12. Learned counsel for the
petitioner has also argued that at the most,
the petitioner's case could be considered
1192 INDIAN LAW REPORT ALLAHABAD SERIES [2006
to be a case of negligence. He has cited
the case of Union of India and others
Vs. J. Ahmed reported in AIR 1979
S.C. 1022. He has in particular, referred
to paragraph-9 of the said judgment
wherein the Supreme Court has explained
that negligence in some cases would not
constitute misconduct because the levels
of administrative ability can not be
measured into strict terms and both lack
of efficiency and lack of foresight would
amount to a serious lapse, but in the
absence of charges of doubtful integrity,
would not constitute misconduct.

13. Learned Standing Counsel has
argued in reply that firstly, the petitioner
has a clearly efficacious alternative
remedy of filing a petition before the
State Administrative Tribunal.

14. Secondly, learned Standing
Counsel has argued that from a bare
perusal of the impugned orders, it is
clearly borne-out that the petitioner was
not only guilty of negligence but the
charges were fully proved against him. He
has argued that not one but many charges
were proved against him.

15. Learned Standing Counsel has
argued that it is the Lekhpal, who is the
key person in the village, who maintains
the records of the village and, therefore,
being the in-charge of the village record,
he knows clearly as to whom land is to be
allotted. In this particular case, 22 persons
were wrongly allotted the land. Apart
from this charge, there were other charges
also against the petitioner such as
unauthorized occupation of quarters and
unauthorized absence.
16. Learned counsel for the
petitioner has argued in rejoinder affidavit
that out of the 22 persons who were
disclosed to be wrongfully allotted the
land, approached the Revenue Court and
obtained stay order and, therefore, it can
not be said that the allotment of land was
completely wrongful.

17. I have heard learned counsel for
the petitioner as well as learned Standing
Counsel at length and I have given
anxious and thoughtful consideration to
the facts and circumstances of the case
and perused the pleadings on record.
Upon perusing the material on record, it is
clear that the order of termination has
been passed against the petitioner on
account of the fact that he made wrongful
allotment
in
village
even
though
chakbandi was going on. The process of
making allotment of land in the village is
not an act, which is singly performed by
the
Lekhpal.
The
Lekhpal
only
recommends the names of the persons
who can be made allottees. In this case
too,
the
petitioner
had
made
a
recommendation of 35 persons and
ultimately, the allotment was allowed
under the signatures of the Tahasildar and
the S.D.M.

18. In the enquiry that was
conducted against the petitioner and upon
perusal of the report which is on record of
the case, it is apparent that the S.D.M. and
the Tahasildar who endorsed and allowed
the allotments recommended by the
petitioner, was neither asked for an
explanation in writing nor did they appear
in the enquiry to show the circumstances
in which they had put seal of approval on
the allotments recommended by the
petitioner. The act of allotment was
indeed not finally done by the Lekhpal.
His role perhaps was confined to making
a wrongful recommendation but the seal
of approval was put on it by the Tahsildar
3All] Harish Chandra V. Commissioner, Moradabad Region, Moradabad and others 1193
and the S.D.M. upon making an enquiry
from the learned Standing Counsel. He
has been unable to inform the Court as to
what action has been taken against these
two persons who are also responsible for
making all these allotments. There is not
even a whisper in the record about what
happened to those two other persons who
participated in the alleged wrongful act of
allotments made to 22 persons.

19. There is also substance in the
argument made by the learned counsel for
the petitioner that while replying to the
charge that wrongful allotments has been
made, despite the process of chakbandi
going on in the village, the petitioner had
included in his reply from subsequent
pleadings that a Government Order had
been issued by which it had been
permitted that allotment could be made
even despite the fact that chakbandi was
going on in the village. The revisional
order has not dealt with this matter at all.

20. Therefore, the consequential
finding that it was done during the course
of chakbandi is perverse.

21. There is also substance in the
argument of the petitioner that under the
U.P. Government Servants Discipline and
Appeal Rules, 1999, it was mandatory
that the provisions of Rule 7 should have
been complied with while imposing a
major punishment on the petitioner. Had
it been a case of imposition of minor
punishment, the position would have been
different. But here, in this case, when the
petitioner was visited with the evil
consequences
of
termination,
the
minimum to be observed in the enquiry
was that the petitioner should have been
given the documentary evidence, which
was against him, and also the names of
witnesses should have been revealed in
the charge sheet itself. This was not done.

22. Moreover, this Court has held in
the case of Subash Chandra Sharma
that oral testimony is a must in the case
for imposition of major punishment. This
too was not done in the present case.

23. Such being the facts and
circumstances of the case, the conclusion
reached is that the enquiry conducted
against the petitioner was not fair and was
vitiated for all the above reasons.
Secondly, the resultant punishment of
dismissal was also not fair.

24. I deem it appropriate that the
petitioner be given a fair chance of
enquiry. The respondents must also
initiate action against the Tahsildar and
against the S.D.M. if they had not already
done so, who put seal of approval on the
alleged wrongful action. As such, a fresh
enquiry be conducted for the petitioner
which may be completed within a period
of three months. The petitioner will be
allowed to participate freely in the
enquiry. For a period of three months, the
petitioner will be deemed to be on
suspension and will be paid normal
subsistence allowance. The orders of
dismissal and consequential order passed
in appeal and revision are set aside. The
subsistence allowance will be paid to the
petitioner as from today. The petitioner
will not be entitled to any arrears or back
wages until conclusion of the enquiry
and/or until fresh order is passed in his
favour.

25. The writ petition is allowed.
---------
1194 INDIAN LAW REPORT ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.9.206

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 31065 of 2004

Ali Hussain

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Daya Shanker Mishra
Sri Chandra Kesh Mishra
Sri Bipin Bihari

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226-claim for
back wager-where the termination order
quashed by court-No specific direction
for back wages-it can not be claimed as a
matter
of
right-unless
specifically
pleaded-material
produced
to
substantiate his pleading-not entitled for
back wages.

Held: Para 18

In view of the above discussions and the
facts that the petitioner has failed to
plead and prove that he was not
gainfully employed from 14.11.73 to
7.10.98, the petitioner is not entitle for
payment of back wages as of right
particularly when the Court in its wisdom
had not exercised the discretion in his
favour at the time when his writ petition
against the order of termination was
allowed in part. As there was no
direction for payment of back wages
therein on reinstatement and the claim
for back wages has been rejected by the
authorities on a uniform and a rational
policy decision, it would not be proper to
interfere in exercise of writ jurisdiction.
Case law discussed:
AIR 2006 SC-586
J.T. 2005 (6) SC-461
(1979) 1 SCR 563
2002 (6) SCC-41
J.T. 2002 (5) SC-143
AIR 2002 SC-2676
2005 (6) SCC-36
2005 (5) SCC-124
2006 (2) SCC-711
2005 (2) SCC-373
AIR 1988 SC-2181
AIR 2001 SC-1684
1996 SCSR (15)-726
AIR 1991 SC (2)-2010

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The one and the only question
which arises and has been raised in this
petition
under
Article
226
of
the
Constitution of India is whether the
petitioner whose termination was set aside
is entitled to back wages for the period
from the date of his termination till his
reinstatement even though he had not
worked during this period.

2. The petitioner-Ali Hussain has
joined PAC on 27.10.1966. On 22.5.1973
a case crime no.506/73 was registered
against
him
on
account
of
his
participation in the PAC revolt of 1973. In
the Sessions Trial No.556/74 State Vs.
Ram Awadh and others, the petitioner
was acquitted on 23.12.1981 of the
criminal charges. The State Government
filed an appeal No.2262/82 against his
acquittal. The appeal was dismissed by
the High Court vide judgment and order
dated 21.12.1992. Further, the S.L.P. of
the State Government in the Hon'ble
Supreme Court was also dismissed on
4.8.1994. In the meantime due to his
involvement in revolt, the Inspector
General of PAC, Bareilly dismissed him
from
service
on
14.11.1973.
The
termination order was challenged by the
petitioner before U. P. State Public