# Harlal Saini v. Union of India & Ors

- **Citation:** (2019) 2 ILRA 1950
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-03-09
- **Case number:** Writ A No. 39169 of 2012
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harlal-saini-v-union-of-india-ors-44688
- **Pages:** 7

## Headnote

A. Administrative Law: Principles of
Natural Justice - A different conclusion
can
be
drawn
by
the
disciplinary
authority only after inviting objections of
the
delinquent
employee-The
disciplinary
authority
proceeded
to
record its own finding and disagreed
with the findings of the enquiry report-
No opportunity of hearing was given to
the petitioner- Allowing this petition, the
High Court held -It is not permitted for
the disciplinary authority to arrive at a
conclusion
on
mere
surmises
and
conjectures
to
hold
the
delinquent
employee guilty. (Para 8 & 23)

B. When the disciplinary authority differs
with the view of the inquiry officer and
2 All. Harlal SainiVs Union of India & Ors.
1951
proposes
to
come
to
a
different
conclusion, it must record its tentative
reasons for such disagreement and give
to the delinquent officer an opportunity
to
represent
before
it
records
its
findings. (Para 18, 19, 21 & 24)

Writ petition challenges order dated May 05,
1999, passed by Disciplinary Authority.

Writ Petition allowed (E-4)

Precedent followed: -

## Text

1950 INDIAN LAW REPORTS ALLAHABAD SERIES
such facts. Admittedly, there are cross
cases registered between petitioner and
Ms. Ruma Chaudhary and also the fact
that Ms. Ruma Chaudhary had duly
appeared and deposed before the ex-parte
preliminary enquiry.

30. It is trite law that the satisfaction
of the authority has to be based upon
objective material on record. There is no
material
on
record
to
justify
the
conclusion that it was not possible to hold
a departmental enquiry.

31. Also, the order has been passed on
the basis of preliminary enquiry. The
preliminary enquiry report was never
supplied to the petitioner. The petitioner did
not have an opportunity to refute the
preliminary enquiry report. The report was
adverse to the petitioner. The authority by
failing to provide preliminary enquiry report
to the petitioner and omitting to call for
objections from the petitioner, has acted in
violation of principles of natural justice. The
procedure adopted by the authority while
passing the impugned order is arbitrary and
illegal. Even the appellate authority failed to
appreciate the aforesaid issues and dismissed
the appeal. The reasoning assigned in the
impugned orders cannot be said to be
relevant grounds to dispense with the
departmental inquiry.

32. In view of the admitted facts and
the legal position referred to above, the
impugned
dismissal
order
dated
09.03.2018 and appellate order dated
11.08.2018 cannot be sustained and are
hereby set aside.

33. The writ petition is allowed.

34. The matter is remanded back to
the disciplinary authority to proceed from
the stage prior to the passing of the
impugned order dated 09.03.2018 and
conclude the enquiry within a period of
six months from the date of production of
a certified copy of this Court.
----------

(2019)10ILR A 1950

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2019

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ A No. 39169 of 2012

Harlal Saini ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri
V.K.
Srivastava,
Sri
Santosh
Kesarwani, Sri O.P. Agrawal, Ms. Pooja
Srivastava, Sri Yogendra Kumar.

Counsel for the Respondents:
A.S.G.I., Sri A.S. Azami, Ms. Himkanya
Srivastava.

A. Administrative Law: Principles of
Natural Justice - A different conclusion
can
be
drawn
by
the
disciplinary
authority only after inviting objections of
the
delinquent
employee-The
disciplinary
authority
proceeded
to
record its own finding and disagreed
with the findings of the enquiry report-
No opportunity of hearing was given to
the petitioner- Allowing this petition, the
High Court held -It is not permitted for
the disciplinary authority to arrive at a
conclusion
on
mere
surmises
and
conjectures
to
hold
the
delinquent
employee guilty. (Para 8 & 23)

B. When the disciplinary authority differs
with the view of the inquiry officer and
2 All. Harlal SainiVs Union of India & Ors.
1951
proposes
to
come
to
a
different
conclusion, it must record its tentative
reasons for such disagreement and give
to the delinquent officer an opportunity
to
represent
before
it
records
its
findings. (Para 18, 19, 21 & 24)

Writ petition challenges order dated May 05,
1999, passed by Disciplinary Authority.

Writ Petition allowed (E-4)

Precedent followed: -

1. P.N.B. & ors. Vs Kunj Behari Misra, AIR
1998 SC 2713 (Para 7, 17, 18)
2. St. of Assam Vs Bimal Kumar Pandit, AIR
1963 SC 1612 (Para 19)
3. Managing Director, ECIL Vs Karunakar,
1994 AIR SCW 1050 (Para 19)
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri B.K. Srivastava learned
Senior Advocate assisted by Ms. Pooja
Srivastava learned Advocate for the
petitioner and Ms. Himkanya Srivastava
learned Advocate for the respondent.

2. The petitioner seeks to challenge
the order dated 15.5.1999, whereby his
appointment to the post of Constable
(CISF) has been brought to an end
holding him guilty of the charges levelled
against him. The charge against the
petitioner in the charge sheet dated
20.1.1998
which
had
lead
to
the
departmental enquiry is as follows:-

Charge

"Force
No.
884667433
Constable H.L. Saini of CISF Unit SSTPS
Shaktinagar and Force No. 8923331600
Constable Shailesh K.B. of CISF Unit
B.C.C.L. Dhanbad Area 12 at Begunia
Headquarters
Unit
Line
on
dated
11.09.1997 at 2030 hours both consumed
opium solution which resulted in the
death of said Constable Shailesh K.B. on
12.09.1997 at 0210 hours at Sanctoria
Hospital E.C.L and Constable H.L. Saini
received treatment by Dr. M. Khalid of
Lions Club Raghunath Kharkia Eye
Hospital Kharkianaga, Chirkundo against
payment of Rs. 5/-. Hence this act of the
said Constable H.L. Saini is an act of
serious indiscipline, bad conduct and
criminal behaviour which resulted in the
death of Constable Shailesh K.B."

3. Reply to the charge sheet was
submitted on 23.3.1998. The enquiry
report dated 13.4.1999 was submitted
exonerating the petitioner saying that the
charges were not proved. The disciplinary
authority
put
a
disagreement
note
relegating the matter for fresh enquiry.

4. Against the order of disagreement
dated 15.5.1999, the petitioner preferred
an appeal on 6.5.1999, which was rejected
on 21.10.1999. The said orders were,
thereafter, subjected to challenge before
the Supreme Court in a petition under
Article 32 of the Constitution of India. It
was dismissed as withdrawn with liberty
to the petitioner to approach the High
Court. In the writ petition filed before the
Delhi High Court, the petitioner got it
dismissed as withdrawn for filing it before
the Court of competent jurisdiction.

5. The challenge to the dismissal
order and the order of rejection of appeal
is that the proceedings of enquiry was not
concluded
in
accordance
with
the
principles of natural justice. The alleged
incident stated to have taken place at
CISF Unit, BCCL, Jahria but the enquiry
was conducted at a different place at
Shaktinagar, where the records were not
1952 INDIAN LAW REPORTS ALLAHABAD SERIES
available. The disciplinary authority once
found that the findings of the enquiry
officer was not in accordance with law,
only option left before it was to quash the
same and remit the matter back for fresh
submission of the enquiry report.

6. Earlier the enquiry report dated
5.4.1999 was not agreed by the disciplinary
authority and the entire file was returned to
resubmit the enquiry report which was resubmitted on 13.4.1999. In the subsequent
report, the enquiry officer gave a categorical
finding that the charges against the
petitioner were not proved, however, the
disciplinary authority disagreeing with the
findings recorded in the enquiry report,
proceeded to record its own finding on the
basis of circumstantial evidence holding the
petitioner guilty. No notice or opportunity
of hearing was given to the petitioner at this
stage i.e. when the disciplinary authority
disagreeing
with
the
enquiry
report
proceeded to record its own finding,
opportunity of hearing was needed.

7. Reference has been made to the
judgment of the Apex Court in Punjab
National Bank and others vs. Kunj
Behari Misra1 to substantiate this
submission.

8. It is further contended that though
the disciplinary enquiry proceeds on the
principles
of
preponderance
of
probabilities but the reasons supporting
the probabilities from the circumstances
brought before the enquiry officer are
required to be recorded. It is not permitted
for the disciplinary authority to arrive at a
conclusion
on
mere
surmises
and
conjectures
to
hold
the
delinquent
employee
guilty.
The
adequacy
or
sufficiency of evidence would not be seen
in a challenge to the departmental
enquiry, but wherein there is a case of no
evidence, the principles of preponderance
of probability would not be attracted as
the said principle requires at least some
evidence for appreciation to reach at the
conclusion of guilt of the delinquent.

9. In a case of no evidence, the
conclusion of the disciplinary authority or
reasoning of the enquiry officer to hold
the delinquent guilty would be bad.

10. Learned counsel for the
respondents, on the other hand, defended
the order impugned with the submission
that after full fledged enquiry, the charges
were found proved by the disciplinary
authority. The opportunity of hearing has
been provided. There was sufficient
evidence to hold the petitioner guilty.

11. In the supplementary affidavit,
the statements of the witnesses who
deposed against the petitioner has been
brought on record.

12. In view of the above rival
submissions, relevant is to note that the
charge against the petitioner was that he
alongwith another Constable Shailesh had
consumed opium on 11.9.1997 at about
20:30 hours at Begunia Headquarters Unit
Line, which has resulted in death of said
Constable Shailesh on 12.9.1997. The
petitioner also had undergone treatment by
Dr. M. Khalid of Lions Club Raghunath
Kharkia Eye College. Hence this act of the
petitioner has been termed as an act of
serious indiscipline, bad conduct and
criminal behaviour which had resulted in
death of another Constable Shailesh.

13. During the course of enquiry,
eight witnesses were examined by the
prosecution. Out of which, the key
2 All. Harlal SainiVs Union of India & Ors.
1953
witness was PW-1 Constable Trilochan
Singh who deposed in his examination-inchief that on 11.9.1997 at about 20:30
hours, the Constable petitioner offered
him a liquid which looked like tea and
asked him to drink it while informing that
it was opium. P.W. 1 had, however,
refused and went away. When he came
back in the night at about 23:30 hours, he
was told that Shailesh was admitted in the
hospital and, thereafter, he received
message that Shailesh had died. In his
cross-examination, nothing much could
be elicited apart from the fact that
Shailesh was eating his food while sitting
at the 'Cot' and was in normal condition.

14. In the cross examination by the
enquiry officer, PW-1 further says that he
did not know as to whom the liquid
containing opium was offered after he
refused to drink it as the Constable
petitioner went back to his place. All
other witnesses had proved that Shailesh
fell ill and was admitted in the hospital
and died. No one had seen Shailesh and
the petitioner Constable consuming opium
together or the petitioner offering it or
that it was consumed by the deceased
Shailesh. The reference of statements of
all other witnesses, therefore, is not
needed here. The doctor P.W.-8 proved
his report and the opinion that death was
caused by some unknown poison. Another
doctor PW-11 was produced to prove that
the petitioner was also treated in his
hospital with complaint of obstruction in
the passage of urine. He has given an
opinion that in case of consumption of
opium, such kind of medical condition
may occur.

15. The enquiry officer after perusal
of the record before it and oral evidences
came to the conclusion that the charge
that Constable Shailesh consumed opium
on the offering of the delinquent and had
died on account of the same was not
proved. P.W.-2 only states that Shailesh
while having his food had told him that he
had consumed opium but no one could
prove that the opium liquid was consumed
by Shailesh which was offered by the
petitioner. It is also not proved that he
died on account of consumption of opium.
No one had seen both of them sitting
together or consuming opium.

16. This enquiry report was
considered by the disciplinary authority
but it has disagreed with the conclusion
drawn by the enquiry officer. Having
noted that the findings were not correct, it
has proceeded to appreciate the evidences
available on record. Noticing that the
petitioner had offered opium solution to
P.W. 1 who had refused to consume the
same, it was presumed that the said opium
solution was offered to and consumed by
Shailesh. From the report of the doctor
that the cause of death was "unknown
poison", it was assumed that the poison
was opium. From the fact that the
petitioner himself was admitted in another
hospital and was treated for obstruction of
urine passage, it was assumed that he had
consumed opium and was admitted in the
hospital for that reason. The appellate
authority while looking to the correctness
of order of the disciplinary authority only
records the past conduct of indiscipline of
the petitioner.

17. However, no one could assail
that fresh notice was required to be given
by
the
disciplinary
authority
while
recording
independent
finding,
disagreeing with the enquiry report on the
same set of evidence. Learned counsel for
the petitioner has brought the judgment of
1954 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court in Punjab National Bank
(supra) to substantiate his submission that
the order of the disciplinary authority is
bad, inasmuch as, no opportunity of
hearing was provided.

18. Reference has been made to
paragraph nos. '17', '18' and'19' of the said
report which are relevant to be quoted
hereunder:-.

"17. These observations are
clearly in tune with the observations in
Bimal Kumar Pandit's case (AIR 1963 SC
1612) quoted earlier and would be
applicable at the first stage itself. the
aforesaid passages clearly bring out the
necessity of the authority which is to
finally record an adverse finding to give a
hearing to the delinquent officer. If the
inquiry officer had given an adverse
finding, as per Karunakar's case (1994
AIR SCW 1050) the first stage required
an opportunity to be given to the
employee to represent to the disciplinary
authority,
even
when
an
earlier
opportunity had been granted to them by
the inquiry officer. It will not stand to
reason that when the finding in favour of
the delinquent officers is proposed to be
over-turned by the disciplinary authority
then no opportunity should be granted.
The first stage of the inquiry is not
completed till the disciplinary authority
has recorded its findings. The principles
of natural justice would demand that the
authority which proposes to decide
against the delinquent officer must give
him a hearing. When the inquiring officer
holds the charges to be proved then that
report has to be given to the delinquent
officer who can make a representation
before the disciplinary authority takes
further action which may be prejudicial to
the delinquent officer. When, like in the
present case, the inquiry report is in
favour of the delinquent officer but the
disciplinary authority proposes to differ
with such conclusions then that authority
which is deciding against the delinquent
officer must give him an opportunity of
being heard for otherwise he would be
condemned unheard. In departmental
proceedings
what
is
of
ultimate
importance
is
the
findings
of
the
disciplinary authority.

18. Under Regulation 6 the
inquiry proceedings can be conducted
either by an inquiry officer or by the
disciplinary authority itself. When the
inquiry is conducted by the inquiry officer
his report is not final or conclusive and
the disciplinary proceedings do not stand
concluded. The disciplinary proceedings
stand concluded with decision of the
disciplinary
authority.
It
is
the
disciplinary authority which can impose
the penalty and not the inquiry officer.
Where the disciplinary authority itself
holds an inquiry an opportunity of
hearing has to be granted by him. When
the disciplinary authority differs with the
view of the inquiry officer and proposes to
come to a different conclusion, there is no
reason as to why an opportunity of
hearing should not be granted. It will be
most unfair and iniquitous that where the
charged officers succeed before the
inquiry officer they are deprived of
representing to the disciplinary authority
before that authority differs with the
inquiry
officer's
report
and,
while
recording of guilt, imposes punishment on
the officer. In our opinion, in any such
situation the charged officer must have an
opportunity to represent before the
Disciplinary
Authority
before
final
findings on the charges are recorded and
punishment imposed. This is required to
be done as a part of the first stage of
2 All. Harlal SainiVs Union of India & Ors.
1955
inquiry as explained in Karunakar's
case(supra).

19. The result of the aforesaid
discussion would be that the principles of
natural justice have to be read into
Regulation 7(2). As a result thereof
whenever
the
disciplinary
authority
disagrees with the inquiry authority on
any article of charge then before it
records its own findings on such charge,
it must record its tentative reasons for
such disagreement and give to the
delinquent officer an opportunity to
represent before it records its findings.
The
report
of
the
inquiry
officer
containing its findings will have to be
conveyed and the delinquent officer will
have an opportunity to persuade the
disciplinary authority to accept the
favorable conclusion of the inquiry
officer. The principles of natural justice,
as we have already observed, require the
authority, which has to take a final
decision and can impose a penalty, to give
an opportunity to the officer charged of
misconduct to file a representation before
the disciplinary authority records its
findings on the charges framed against
the officer."

19. Considering the observations of
the Apex Court in State of Assam vs.
Bimal Kumar Pandit2 and Managing
Director, ECIL vs. Karunakar3, it was
held therein that the first stage of the
enquiry
is
not
complete
till
the
disciplinary authority has recorded its
finding. The principles of natural justice
would demand that the authority which
proposes to decide against the delinquent
officer must give him a hearing. When the
enquiry officer holds the charges to be
proved then that report has to be given to
the delinquent officer who can make a
representation before the disciplinary
authority, who may take further action
which
may
be
prejudicial
to
the
delinquent officer. In a case where
enquiry report is in favour of the
delinquent employee but the disciplinary
authority proposes to differ with such
conclusion, then that authority which is
deciding fate of the delinquent officer
must give him an opportunity of being
heard for otherwise, he would be
condemned unheard. In departmental
proceedings what is of utmost importance
is the finding of the disciplinary authority.
It was finally concluded therein that
where the disciplinary authority imposed
penalty
by
coming
to
a
different
conclusion from that of the enquiry
officer, it was required to provide
opportunity of hearing to the employee.
The reason being that the authority which
has to take a final decision and impose a
penalty shall give an opportunity to the
officer charged of his conduct to file his
reply on the charges, otherwise not found
proved by the enquiry officer.

20. No contrary view could be
placed before the Court by the learned
counsel for the respondent.

21. In view of the above discussed
law, it is clear that the order of the
disciplinary authority is in gross violation
of the principles of natural justice, as
admittedly, opportunity has not been
provided to the petitioner. Since, it was a
case where charges were not found
proved by the enquiry officer, a different
conclusion could be drawn by the
disciplinary authority only after inviting
objections of the delinquent employee.

22. Now, on the question of merit of
the order of the disciplinary authority,
relevant is to note that the disciplinary
1956 INDIAN LAW REPORTS ALLAHABAD SERIES
authority while disagreeing with the
findings of the enquiry officer had simply
recorded that since PW-1 knew that
opium solution was with the petitioner
who had offered it to him coupled with
the fact that the Constable Shailesh was
admitted in the hospital and died on
account of some unknown case of
poisoning, an inference can be drawn
about involvement of the petitioner in
offering him opium solution.

23. As noted above, having gone
through the oral evidences on record, there is
no doubt to the fact that there was no direct
evidence against the petitioner that he had
consumed opium with the deceased Shailesh
or that he offered opium to Shailesh. No one
had seen them consuming opium together or
even sitting together. It is, thus, a case of no
evidence. The disciplinary authority has
simply acted on surmises and conjectures to
create a hypothesis of involvement of the
petitioner in the death of Constable Shailesh.
Mere assumption of any situation on
hypothetical criteria without any supportive
evidence (even circumstantial) would not be
proof even on the principles of preponderance
of probabilities. The said principle does not
give leverage to the disciplinary authority to
create a hypothesis by its own imagination
without any evidence. The reason given by
the disciplinary authority in the order
impugned of holding the petitioner guilty is
nothing but creation of his own imagination.
As this is a case of no evidence, the entire
decision making process culminating in the
decision of the disciplinary authority suffers
from perversity and arbitrariness. The order of
punishment awarded by the disciplinary
authority, therefore, cannot be sustained. The
same is hereby quashed.

24. The appellate authority has simply
rejected the appeal on the ground that the
procedure laid down for departmental
enquiry had been followed and there was no
miscarriage
of
justice.
Further
the
punishment awarded was commensurate
with the gravity of offence. It has simply
overlooked the requirement of opportunity to
be given by the disciplinary authority before
recording the finding of guilt when the
petitioner was exonerated in the enquiry i.e.
charges against him were not proved by the
enquiry officer.

25. The order of the appellate
authority, therefore, is set aside.

26. The petitioner is entitled to
reinstatement
with
all
consequential
benefits and back wages for the period of
discontinuance,
inasmuch
as,
the
employers have illegally restrained him
from working by proceeding in an
arbitrary manner.

27.

Subject
to
the
above
observations and directions, the writ
petition is allowed.
----------

(2019)10ILR A 1956

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ A No. 16106 of 2017

Arvind Kumar ...Petitioner
Versus
Registrar General High Court of
Judicature at Alld. & Anr. ...Respondents

Counsel for the Petitioner:
Sri
Adarsh
Bhushan.