# Hukum Chand v. The State Service Tribunal and others

- **Citation:** (2008) 1 ILRA 66
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-06
- **Case number:** Civil Misc. Writ Petition No. 37849 of 2004
- **Bench:** R.K. Agrawal, S.P. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hukum-chand-v-the-state-service-tribunal-and-others-40990
- **Pages:** 12

## Headnote

Constitution of India, Art. 226-Service
law-Dismissal
order
challenged
on
ground non supply of enquiry report-No
show
cause
notice-as
well
as
on
quantum of punishment-before tribunal
copy of enquiry report supplied-full
opportunity given-No prejudice shown
for
non
supply
of
enquiry
report
disciplinary authority considered past
conduct of the petitioner-found habitual
of marpit with other employees as well
as officers-considering the charges-of
assault on his superior officer found
proved-punishment of dismissal-can not
be disproportionate.

Held: Para 31, 34 & 42

Having examined the material on the
said record and having considered the
submissions
made
by
the
learned
counsel for the parties, we are of the
view that even if the copy of the Inquiry
Report was supplied to the petitioner,
the same would have made no difference
to the ultimate findings of the Inquiry
Officer and the punishment given to the
petitioner.

We are of the view that the Disciplinary
Authority did not commit any illegality in
taking into account the past history in
regard to work, behaviour and conduct
of
the
petitioner
for
deciding
the
quantum of punishment to be imposed
on the petitioner.

Keeping in view the aforesaid facts and
circumstances, it is evident that the
Disciplinary Authority was justified in
imposing the punishment of dismissal
from service on the petitioner.
Case law discussed:
AIR 1994 SC-1074, AIR 1962 SC-1130, AIR
2003 SC-1571, AIR 2005 SC-3417, AIR 2006
SC-2208

## Text

66 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2007

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 37849 of 2004

Hukum Chand

...Petitioner
Versus
State Services Tribunal, Indira Bhawan,
Lucknow and others
...Respondents

Counsel for the Petitioner:
Sri L.P. Singh
Sri P.K. Sharma
Sri Veer Singh
Sri K.K. Pandey
Sri Manu Yadav

Counsel for the Respondents:
Sri B.K. Pandey
S.C.

Constitution of India, Art. 226-Service
law-Dismissal
order
challenged
on
ground non supply of enquiry report-No
show
cause
notice-as
well
as
on
quantum of punishment-before tribunal
copy of enquiry report supplied-full
opportunity given-No prejudice shown
for
non
supply
of
enquiry
report
disciplinary authority considered past
conduct of the petitioner-found habitual
of marpit with other employees as well
as officers-considering the charges-of
assault on his superior officer found
proved-punishment of dismissal-can not
be disproportionate.

Held: Para 31, 34 & 42

Having examined the material on the
said record and having considered the
submissions
made
by
the
learned
counsel for the parties, we are of the
view that even if the copy of the Inquiry
Report was supplied to the petitioner,
the same would have made no difference
to the ultimate findings of the Inquiry
Officer and the punishment given to the
petitioner.

We are of the view that the Disciplinary
Authority did not commit any illegality in
taking into account the past history in
regard to work, behaviour and conduct
of
the
petitioner
for
deciding
the
quantum of punishment to be imposed
on the petitioner.

Keeping in view the aforesaid facts and
circumstances, it is evident that the
Disciplinary Authority was justified in
imposing the punishment of dismissal
from service on the petitioner.
Case law discussed:
AIR 1994 SC-1074, AIR 1962 SC-1130, AIR
2003 SC-1571, AIR 2005 SC-3417, AIR 2006
SC-2208

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The present Writ Petition has
been filed by the petitioner under Article
226 of the Constitution of India, interalia,
praying for issuance of writ, order or
direction in the nature of certiorari
quashing the order dated 6.10.1999
(Annexure-6 to the Writ Petition), the
order dated 16.5.2000 (Annexure-8 to the
Writ Petition), the order dated 3.10.2003
(Annexure-11 to the Writ Petition) and
the order dated 4.8.2004 (Annexure-13 to
the Writ Petition), and further, for
issuance of writ, order or direction in the
nature
of
mandamus
directing
the
respondents to reinstate the petitioner in
service with all consequential benefits to
which he is entitled.

2. As per the averments made in the
Writ Petition, the petitioner was appointed
on the post of Palledar (Class-IV) by the
Assistant
Commissioner
Shasakiya/
respondent no.3; and that the post of
1 All] Hukum Chand V. The State Service Tribunal and others
67
Palledar is now re-designated as 'Sewak';
and that the petitioner was confirmed on
the said post by the Competent Authority.

3. By the order dated 21.9.1998, the
petitioner was placed under suspension by
the
respondent
no.5.
Disciplinary
proceedings were initiated against the
petitioner, and a charge-sheet dated
18.3.1999 was served on him. Copy of the
said charge-sheet has been filed as
Annexure-1 to the Writ Petition.

4. A perusal of the said charge-sheet
shows that Charge no.1 against the
petitioner was regarding assaulting R.S.
Gangwar,
Assistant
Commissioner
(Vi.Anu.Sha.), Dwitiya Ikai, NOIDA with
fist on 18.9.1998 thereby causing injury in
the hand of the said R.S. Gangwar.

5. Charge no.2 was regarding
tampering with the attendance register
when the petitioner came late or was
absent.

6. Charge no.3 was regarding the
petitioner
being
habitual
of
such
misconduct and indiscipline. Reference
was made to the order dated 12.3.1985
whereby
the
petitioner
was
given
'Censure' entry and his two annual
increments were stopped with cumulative
effect condemning his work and conduct.

7. Charge no.4 was regarding the
acts of the petitioner in getting Form No.
31 passed in wrongful manner during the
year 1992-93 when he was posted at
Check Post, Mohan Nagar, which resulted
in stoppage of three increments of the
petitioner with cumulative effect. The
petitioner was accordingly charged for
being habitually indisciplined and doing
wrongful acts.
8. After giving opportunity to the
petitioner, the Inquiry Officer submitted
his Inquiry Report dated 13.9.1999.

9. It may be mentioned that during
the course of hearing of the present Writ
Petition,
learned
Standing
Counsel
produced the original record regarding the
enquiry against the petitioner.

10. We have perused the Inquiry
Report available on the said record
produced
by
the
learned
Standing
Counsel.

11. A perusal of the Inquiry Report
shows that the Inquiry Officer in the said
Report, interalia, concluded that as per the
own admission of the petitioner, he had
altercation with the said R.S. Gangwar on
18.9.1998. The Inquiry Officer further
noted that the said R.S. Gangwar lodged
First Information Report against the
petitioner on 18.9.1998, and got himself
medically examined also. Copies of the
First Information Report as well as the
medical
examination
report
were
produced before the Inquiry Officer.

12. The Inquiry Officer further
noted the past conduct of the petitioner as
indicated in various charges mentioned in
the charge-sheet and concluded that the
behaviour of the petitioner was not
normal and he was quarrelsome by nature.
The conduct of the petitioner (Sewak) was
not such as could be expected of any
Class-IV employee, and it was absolutely
necessary that the petitioner be punished
for his conduct.

The
Inquiry
Officer
suggested
punishment
of
stoppage
of
three
increments with cumulative effect.
68 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
13. The Disciplinary Authority
[respondent no.5-Assistant Commissioner
(Admin.), Trade Tax, NOIDA] on a
detailed consideration of the Inquiry
Report awarded punishment of dismissal
from service to the petitioner by the order
dated 6.10.1999. Copy of the said order
dated 6.10.1999 has been filed as
Annexure-6 to the Writ Petition.

14. It further appears from the
averments made in paragraph 17 of the
Writ Petition that the petitioner made an
application praying for supply of copy of
the Inquiry Report before the respondent
no.5. However, the respondent no.5 by the
letter dated 29.11.1999 (Annexure-7 to
the Writ Petition) declined to supply copy
of the Inquiry Report to the petitioner.

15. It further appears that the
petitioner filed an Appeal/ Representation
against the said order dated 6.10.1999
whereby he had been dismissed from
service.

16. The respondent no.4 - Deputy
Commissioner (Karmik), Trade Tax,
NOIDA Sambhag, NOIDA by his order
dated 16.5.2000 rejected the said Appeal/
Representation filed by the petitioner.

Copy of the said order dated
16.5.2000 has been filed as Annexure-8 to
the Writ Petition.

17. Thereafter, the petitioner filed a
Claim Petition before the U.P. State
Public
Services
Tribunal,
Lucknow
(hereinafter also referred to as "the
Tribunal"). The said Claim Petition was
numbered as Claim Petition No. 843 of
2000.

18. By the judgment and order dated
3.10.2003, the Tribunal dismissed the said
Claim Petition filed by the petitioner.
Copy of the said judgment and order
dated 3.10.2003 has been filed as
Annexure-11 to the Writ Petition.

19. Thereupon, the petitioner filed a
Review Petition before the Tribunal. By
the order dated 4.8.2004, the said Review
Petition was dismissed by the Tribunal.
Copy of the said order dated 4.8.2004 has
been filed as Annexure-13 to the Writ
Petition.

Thereafter, the petitioner has filed
the present Writ Petition seeking the
aforesaid reliefs.

20. We have heard Shri Veer Singh,
learned counsel for the petitioner and the
learned Standing Counsel appearing for
the respondents, and perused the record.

21. Shri Veer Singh, learned counsel
for the petitioner has made the following
submissions:

1. In the present case, the Inquiry
Officer and the Disciplinary Authority
were
different
and,
therefore,
after
submission of the Inquiry Report, the
Disciplinary Authority was required to
supply copy of the Inquiry Report to the
petitioner. However, copy of the Inquiry
Report was not supplied to the petitioner,
and, therefore, the order dismissing the
petitioner from service was vitiated.
Reliance has been placed on the decision
of the Supreme Court in Managing
Director, ECIL, Hyderabad etc. etc. v. B.
Karunakar, etc. etc., AIR 1994 SC 1074.

2. The Disciplinary Authority took past
conduct of the petitioner into account
1 All] Hukum Chand V. The State Service Tribunal and others
69
while imposing punishment. This could
not be done by the Disciplinary Authority.

3. A perusal of the Inquiry Report
shows that the Inquiry Officer recorded
finding that the petitioner had an
altercation with R.S. Gangwar in whose
Office
the
petitioner
was
posted.
However, the Inquiry Officer did not find
the charge of hitting of R.S. Gangwar by
the
petitioner
as
proved.
In
the
circumstances,
the
Inquiry
Officer
recommended for imposing punishment
of stoppage of three increments only.
However, the Disciplinary Authority
imposed the punishment of dismissal
from service which was too harsh.

In reply, the learned Standing
Counsel appearing on behalf of the
respondents has made the following
submissions:

1. No prejudice has been shown by the
petitioner on account of non-supply of the
copy of the Inquiry Report by the
Disciplinary Authority. Copy of the
Inquiry Report was placed before the
Tribunal as Annexure R-7. The petitioner
made his submissions against the findings
recorded by the Inquiry Officer before the
Tribunal, and the Tribunal rejected the
said submissions after due consideration.
In the circumstances, the order of
dismissal of the petitioner from service is
not vitiated.

2. The past conduct of the petitioner
could be considered by the Disciplinary
Authority in order to take appropriate
decision as regards the quantum of
punishment keeping in view the totality of
the facts and circumstances of the case.

3. It was not incumbent on the
Disciplinary Authority to accept the
recommendation of the Inquiry Officer as
regards punishment. The Disciplinary
Authority on a consideration of the entire
facts
and
circumstances
imposed
punishment of dismissal from service, and
the same was not harsh keeping in view
the facts and circumstances of the present
case.

4. No show-cause notice was required
to be given to the petitioner by the
Disciplinary Authority in regard to the
quantum of the proposed punishment.

We have considered the submissions
made by the learned counsel for the
parties.

22. Let us take-up the first
submission made by the learned counsel
for the petitioner regarding non-supply of
copy of the Inquiry Report.

It is evident from a perusal of the
letter dated 29.11.1999 (Annexure-7 to
the Writ Petition) that copy of the Inquiry
Report was not supplied to the petitioner.
However, it is further evident from a
perusal of paragraph 6 of the judgment
and order dated 3.10.2003 passed by the
Tribunal (Annexure-11 to the Writ
Petition) that copy of the Inquiry Report
was filed before the Tribunal at the time
of hearing, and the same was AnnexureR-7.

23. It is further evident from a
perusal of paragraph 10 of the said
judgment and order dated 3.10.2003
passed by the Tribunal that the learned
counsel for the petitioner before the
Tribunal referred to the Inquiry Report
and made his submissions assailing the
70 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
findings recorded by the Inquiry Officer.
The said submissions made by the learned
counsel for the petitioner were rejected by
the Tribunal after due consideration.

24. In paragraph 11 of the said
judgment and order, the Tribunal has
noted that the procedure prescribed by the
Rules was followed in the enquiry and the
petitioner was given ample opportunity to
defend himself.

25. In order to appreciate the
submission made by the learned counsel
for the petitioner regarding non-supply of
copy of the Inquiry Report, it is relevant
to refer to the decision of the Supreme
Court in Managing Director, ECIL,
Hyderabad etc. etc. v. B. Karunakar, etc.
etc., AIR 1994 SC 1074 (supra). In the
said decision, their Lordships of the
Supreme Court held as under (paragraph 7
of the said AIR):

"7..............Since the Government of
India Act, 1935 till the 42nd Amendment
of the Constitution, the Government
servant had always the right to receive
report of the Inquiry Officer/authority and
to represent against the findings recorded
in it when the Inquiry Officer/authority
was not the disciplinary authority. This
right was however, exercisable by him at
the second stage of the disciplinary
proceedings viz., when he was served with
a notice to show cause against the
proposed penalty. The issuance of the
notice to show cause against the penalty
necessarily required the furnishing of a
copy of the inquiry Officer's report since,
as held by the Courts, the right to show
cause against the penalty also implied the
right to represent against the findings on
the charges. This was considered to be an
essential
part
of
the
reasonable
opportunity,
incorporated
earlier
in
Section 240 (3) of the GOI Act and later
in Article 311(2) of the Constitution as
originally enacted. The right to receive
the Inquiry Officer's report and to show
cause against the findings in the report
was independent of the right to show
cause against the penalty proposed. The
two rights came to be confused with each
other because as the law stood prior to
the 42nd Amendment of the Constitution,
the two rights arose simultaneously only
at the stage when a notice to show cause
against the proposed penalty was issued.
If
the
disciplinary
authority
after
considering the Inquiry Officer's report
had dropped the proceedings or had
decided to impose a penalty other than
that of dismissal, removal or reduction in
rank, there was no occasion for issuance
of the notice to show cause against the
proposed penalty. In that case, the
employee had neither the right to receive
the report and represent against the
finding of guilt nor the right to show
cause against the proposed penalty. The
right to receive the report and to
represent against the findings recorded in
it was thus inextricably connected with
the acceptance of the report by the
disciplinary authority and the nature of
the penalty proposed. Since the 42nd
Amendment of the Constitution dispensed
with the issuance of the notice to show
cause against the penalty proposed even if
it was dismissal, removal or reduction in
rank, some courts took the view that the
Government servant was deprived of his
right to represent against the findings of
guilt as well. The error occurred on
account of the failure to distinguish the
two rights which were independent of
each other.
While the right to represent against
the findings in the report is part of the
1 All] Hukum Chand V. The State Service Tribunal and others
71
reasonable opportunity available during
the first stage of the inquiry viz., before
the disciplinary authority takes into
consideration the findings in the report.
the right to show cause against the
penalty proposed belongs to the second
stage when the disciplinary authority has
considered the findings in the report and
has come to the conclusion with regard to
the guilt of the employee and proposes to
award penalty on the basis of its
conclusions. The first right is the right to
prove innocence. The second right is to
plead for either no penalty or a lesser
penalty
although
the
conclusion
regarding the guilt is accepted. It is the
second right exercisable at the second
stage which was taken away by the 42nd
Amendment.
The reason why the right to receive
the report of the Inquiry Officer is
considered an essential part of the
reasonable opportunity it the first stage
and also a principle of natural justice is
that the findings recorded by the Inquiry
Officer form an important material before
the disciplinary authority which along
with
the
evidence
is
taken
into
consideration by it to come to its
conclusions.......................
The position in law can also be
looked at from a slightly different angle.
Article 311(2) says that the employee
shall be given a "reasonable opportunity
of being heard in respect of the charges
against him". The findings on the charges
given by a third person like the enquiry
Officer, particularly when they are not
borne out by the evidence or are arrived
at by overlooking the evidence or
misconstruing
it,
could
themselves
constitute new unwarranted imputations.
What is further, when the proviso to the
said Article states that "where it is
proposed after such inquiry to impose
upon him any such penalty such penalty
may be imposed on the basis of the
evidence adduced during such inquiry
and it shall not be necessary to give such
person
any
opportunity
of
making
representation on the penalty proposed",
it in effect accepts two successive stages
of differing scope. Since the penalty is to
be proposed after the inquiry, which
inquiry in effect is to be carried out by the
disciplinary authority (the Inquiry Officer
being only his delegate appointed to hold
the inquiry and to assist him), the
employee's reply to the Inquiry Officer's
report and consideration of such reply by
the disciplinary authority also constitute
an integral part of such inquiry. The
second stage follows the inquiry so
carried out and it consists of the issuance
of the notice to show cause against the
proposed penalty and of considering the
reply to the notice and deciding upon the
penalty. What is dispensed with is the
opportunity of making representation on
the
penalty
proposed
and
not
of
opportunity of making representation on
the report of the Inquiry Officer. The
latter right was always there. But before
the 42nd Amendment of the Constitution,
the point of time at which it was to be
exercised had stood deferred till the
second stage viz., the stage of considering
the penalty. Till that time, the conclusions
that the disciplinary authority might have
arrived at both with regard to the guilt of
the employee and the penalty to be
imposed were only tentative. All that has
happened after the 42nd Amendment of
the Constitution is to advance the point of
time at which the representation of the
employee against the enquiry Officer's
report would be considered. Now, the
disciplinary authority has to consider the
representation of the employee against
the report before it arrives at its
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
conclusion with regard to his guilt or
innocence of the charges.
Hence it has to be held that when the
Inquiry Officer is not the disciplinary
authority, the delinquent employee has
right to receive a copy of the inquiry
Officer's report before the disciplinary
authority arrives at its conclusions with
regard to the guilt or innocence of the
employee with regard to the charges
levelled against him. That right is a part
of the employee's right to defend himself
against the charges levelled against him.
A denial of the Inquiry Officer's report
before the disciplinary authority takes its
decision on the charges is a denial of
reasonable opportunity to the employee to
prove his innocence and is a breach of the
principles
of
natural
justice.............................
....................When the employee is
dismissed or removed from service and
the inquiry is set aside because the report
is not furnished to him, in some cases the
non-furnishing of the report may have
prejudiced him gravely while in other
cases it may have made no difference to
the ultimate punishment awarded to him.
Hence to direct reinstatement of the
employee with back-wages in all cases is
to reduce the rules of justice to a
mechanical
ritual.
The
theory
of
reasonable opportunity and the principles
of natural justice have been evolved to
uphold the rule of law and to assist the
individual to vindicate his just rights.
They are not incantations to be invoked
nor rites to be performed on all and
sundry occasions. Whether in fact,
prejudice has been caused to the
employee or not on account of the denial
to him of the report, has to be considered
on the facts and circumstances of each
case. Where, therefore, even after the
furnishing of the report, no different
consequence would have followed, it
would be a perversion of justice to permit
the employee to resume duty and to get all
the consequential benefits. It amounts to
rewarding the dishonest and the guilty
and thus to stretching the concept of
justice to illogical and exasperating
limits. It amounts to a "unnatural
expansion of natural justice" which in
itself is antithetical to justice.
Hence, in all cases where the Inquiry
Officer's report is not furnished to the
delinquent employee in the disciplinary
proceedings, the courts and Tribunals
should cause the copy of the report to be
furnished to the aggrieved employee if he
has not already secured it before coming
to the Court! Tribunal, and give the
employee an opportunity to show how his
or her case was prejudiced because of the
non-supply of the report. If after hearing
the parties, the Court., Tribunal comes to
the conclusion that the non-supply of the
report would have made no difference to
the ultimate findings and the punishment
given, the Court/Tribunal should not
interfere with the order of punishment.
The
Court/Tribunal
should
nut
mechanically set aside the order of
punishment on the ground that the report
was not furnished as is regrettably being
done at present. The courts should avoid
resorting to short-cuts. Since it is the
Courts/ Tribunals which will apply their
judicial mind to the question and give
their reasons for setting aside or not
setting aside the order of punishment,
(and not any internal appellate or
revisional authority), there would be
neither a breach of the principles of
natural justice nor a denial of the
reasonable opportunity. It is only if the
Courts/ Tribunals find that the furnishing
of the report would have made a:
difference to the result in the case that
1 All] Hukum Chand V. The State Service Tribunal and others
73
should set aside the order of punishment
Where
after
following
the
above
procedure the Courts/Tribunals sets aside
the order of punishment, the proper relief
that should be granted is to direct
reinstatement of the employee with liberty
to the authority, management to proceed
with the inquiry, by placing the employee
under suspension and continuing the
inquiry from the stage of furnishing him
with the report. The question whether the
employee would be entitled to the backwages and other benefits from the date of
his
dismissal
to
the
date
of
his
reinstatement if ultimately ordered should
invariably be left to be decided by the
authority concerned according to law,
after the culmination of the proceedings
and depending on the final outcome. If the
employee succeeds in the fresh inquiry
and is directed to be reinstated, the
authority should be at liberty to decide
according to law how it will treat the
period from the date of dismissal till the
reinstatement and to what benefits, if any
and the extent of the benefits, he will be
entitled. The reinstatement made as a
result of the setting aside of the inquiry
for failure to furnish the report should be
treated as a reinstatement for the purpose
of holding the fresh inquiry from the stage
of furnishing the report and no more,
where such fresh inquiry is held. That will
also
be
the
correct
position
in
law................."
(Emphasis supplied)

26. The following propositions,
amongst others, have, thus, been laid
down in the above decision of the
Supreme Court.

1. If the Inquiry Officer and the
Disciplinary Authority are not the same,
the delinquent employee should be
supplied with a copy of the Inquiry
Officer's Report before the Disciplinary
Authority arrives at its conclusions with
regard to the guilt or innocence of the
employee in respect of the charges
levelled against such employee.

2. The right to get copy of the Inquiry
Report and to make representation against
the findings of the Inquiry Officer in
cases falling under proposition no. 1
above, is distinct and apart from the right
to get notice and to show cause against
the proposed penalty. The latter right,
namely, right to get notice and to show
cause against the proposed penalty has
been
taken
away
by
the
42nd
Constitutional Amendment but the former
right, namely, right to get copy of the
Inquiry Report and to represent before the
Disciplinary
Authority
against
the
findings recorded by the Inquiry Officer is
still subsisting.

3. If in a case falling under the
proposition no.1, copy of the Inquiry
Report is not supplied to the delinquent
employee, the delinquent employee is
required to show as to what prejudice has
been caused to him on account of nonsupply of the copy of the Inquiry Report.
For
deciding
this
question,
the
Court/Tribunal will cause the copy of the
Inquiry Report to be furnished to the
aggrieved employee if he has not already
secured
it
before
coming
to
the
Court/Tribunal and give the employee an
opportunity to show as to how his case
has been prejudiced because of nonsupply of the Inquiry Report. In case,
after
hearing
the
parties,
the
Court/Tribunal comes to the conclusion
that the non-supply of the Inquiry Report
would have made no difference to the
ultimate findings and the punishment
74 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
given, the Court / Tribunal should not
interfere with the order of punishment.

Reverting to the facts of the present
case, it has been noted above that even
though copy of the Inquiry Report was
not supplied to the petitioner, the same
was made available to the petitioner
during the course of hearing of the case
before the Tribunal. Thus, the Tribunal
gave opportunity to the petitioner to show
as to how his case had been prejudiced on
account of non-supply of the copy of the
Inquiry Report. The submissions raised on
behalf of the petitioner before the
Tribunal assailing the findings recorded
by the Inquiry Officer were considered by
the Tribunal as is evident from a perusal
of paragraph 10 of the judgment and order
dated 3.10.2003 passed by the Tribunal.
In paragraph 11 of the said judgment and
order, the Tribunal further concluded that
the petitioner had been given ample
opportunity to defend himself.

27. In view of the above, it is
evident that the Tribunal made copy of
the Inquiry Report available to the
petitioner
and
gave
the
petitioner
opportunity to show as to how he had
been prejudiced on account of non-supply
of the copy of the Inquiry Report. The
petitioner failed to show any prejudice
and the Tribunal, therefore, upheld the
order of dismissal of the petitioner from
service.

28. In the present Writ Petition
before this Court, the petitioner has made
grievance regarding non-supply of copy
of the Inquiry Report to him before
imposing penalty of dismissal from
service, as is evident from a perusal of
paragraphs 14,15,16,17 and 18 of the Writ
Petition. However, the petitioner has not
made any specific allegation regarding
prejudice which he might have suffered
on account of non-supply of copy of the
Inquiry Report. During the course of
hearing also, the learned counsel for the
petitioner has not been able to show as to
how the petitioner was prejudiced on
account of non-supply of copy of the
Inquiry Report.

29. As no prejudice has been
established by the petitioner, the order of
dismissal of the petitioner from service
cannot be said to be vitiated on account of
non-supply of copy of the Inquiry Report.

30. As noted above, the original
record of the enquiry proceedings has
been produced before us by the learned
Standing Counsel.

31. Having examined the material
on the said record and having considered
the submissions made by the learned
counsel for the parties, we are of the view
that even if the copy of the Inquiry Report
was supplied to the petitioner, the same
would have made no difference to the
ultimate findings of the Inquiry Officer
and
the
punishment
given
to
the
petitioner.

In the circumstances, no interference
is called for with the order of dismissal of
the petitioner from service.

32. Coming now to the second
submission made by the learned counsel
for the petitioner regarding taking into
account the past conduct of the petitioner
while imposing penalty, it is noteworthy
that one of the main charges against the
petitioner was that he was habitual in
committing misconduct and indiscipline
and in committing wrongful acts, and
1 All] Hukum Chand V. The State Service Tribunal and others
75
various instances were mentioned in the
charge-sheet in regard to the same.
Having
examined
the
facts
and
circumstances in the light of material on
record, the Inquiry Officer concluded that
the behaviour of the petitioner was not
normal and he was of quarrelsome nature,
and the conduct of the petitioner (Sewak)
was not such as could be expected of any
Class-IV employee, and it was absolutely
necessary that the petitioner be punished
for his conduct.

33. The Disciplinary Authority
examined in detail the charges levelled
against the petitioner and the findings
recorded by the Inquiry Officer and
concluded that it was a case of serious
misconduct on the part of the petitioner.
In order to decide as to what punishment
be imposed on the petitioner, the
Disciplinary
Authority
took
into
consideration the past history regarding
work, behaviour and conduct of the
petitioner as emerging from the service
record and thereafter imposed the penalty
of dismissal from service keeping in view
the totality of the facts and circumstances
of the case.

34. We are of the view that the
Disciplinary Authority did not commit
any illegality in taking into account the
past history in regard to work, behaviour
and conduct of the petitioner for deciding
the quantum of punishment to be imposed
on the petitioner.

35. Coming now to the third
submission made by the learned counsel
for
the
petitioner
regarding
the
punishment of dismissal from service
imposed by the Disciplinary Authority
despite the fact that the Inquiry Officer
had
recommended
punishment
of
stoppage of three increments only, we are
of the view that the quantum of
punishment was to be decided by the
Disciplinary Authority keeping in view,
interalia, the findings recorded by the
Inquiry Officer in regard to various
charges levelled against the petitioner.
The Disciplinary Authority was not bound
by the suggestion/ recommendation made
by
the
Inquiry
Officer,
and
it
(Disciplinary Authority) was required to
take its own decision on the question of
quantum of punishment. Reference in this
regard may be made to the decision of the
Supreme Court in A.N. D'Silva v. Union
of India, AIR 1962 SC 1130.

36. As noted above, the Disciplinary
Authority on a detailed consideration of
the charges levelled against the petitioner
and the findings recorded by the Inquiry
Officer in regard to such charges and also
keeping in view the past history of the
petitioner in regard to his work, behaviour
and conduct, concluded that the petitioner
had committed serious misconduct and
the petitioner was habitual in repeatedly
committing misconduct during his service
and there was no possibility of any
improvement
in
his
conduct,
and
continuing the petitioner in service would
adversely
affect
other
disciplined
employees also. In the circumstances, the
Disciplinary
Authority
imposed
punishment of dismissal from service on
the petitioner.

37. In our opinion, the Disciplinary
Authority did not commit any illegality in
not
accepting
the
suggestion/
recommendation of the Inquiry Officer in
regard to the quantum of punishment and
in imposing the punishment of dismissal
from service on the petitioner.
76 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
38. As regards the submission made
by the learned counsel for the petitioner
that the punishment of dismissal from
service imposed by the Disciplinary
Authority was too harsh, we are of the
view that having regard to the facts and
circumstances
mentioned
above,
the
punishment of dismissal from service
imposed by the Disciplinary Authority
cannot be said to be harsh.

39. The Inquiry Officer in his
Report,
as
mentioned
hereinbefore,
concluded that as per the own admission
of the petitioner he had altercation with
the said R.S. Gangwar on 18.9.1998. The
Inquiry Officer further noted that the said
R.S. Gangwar lodged First Information
Report
against
the
petitioner
on
18.9.1998, and got himself medically
examined also.

40. The Inquiry Officer further
noted the past conduct of the petitioner as
indicated in various charges mentioned in
the charge-sheet and concluded that the
behaviour of the petitioner was not
normal and he was quarrelsome by nature.
The conduct of the petitioner (Sewak) was
not such as could be expected of any
Class-IV employee, and it was absolutely
necessary that the petitioner be punished
for his conduct.

41. It is noteworthy that no
reasonable explanation was given by the
petitioner regarding his altercation with
R.S.
Gangwar
on
18.9.1998.
The
petitioner has not alleged any malafide
against the said R.S. Gangwar.

42. Keeping in view the aforesaid
facts and circumstances, it is evident that
the Disciplinary Authority was justified in
imposing the punishment of dismissal
from service on the petitioner.

43. There is another aspect of the
matter also.

It has been laid by the Supreme
Court in various decisions that the
punishment imposed by the Disciplinary
Authority or the Appellate Authority
should not be subjected to judicial review
unless the same is shocking to the
conscience
of
the
Court/Tribunal.
Reference in this regard may be made to
the following decisions:

1. Chairman and Managing Director,
United Commercial Bank and others v.
P.C. Kakkar, AIR 2003 SC 1571
(paragraphs 1,12,13 and 14).
2. V. Ramana v. A.P.S.R.T.C. and
others, AIR 2005 SC 3417 (paragraphs
12,13 and 14).
3. General Secretary, South Indian
Cashew Factories Workers Union v.
Managing
Director,
Kerala
State
Cashew Development Corporation Ltd.
and
others,
AIR
2006
SC
2208
(paragraph 16).
4. Union of India and others v.
Dwarka Prasad Tiwari, (2006) 10 SCC
388 (paragraphs 10,11,15,16 and 17).

44. The punishment of dismissal
from service imposed in the present case
cannot, in our opinion, be said to be such
as is shocking to the conscience of the
Court. Therefore, no interference is called
for with the order imposing the said
punishment on the petitioner.

45. In view of the above discussion,
we are of the opinion that the Writ
Petition lacks merits, and the same is
liable to be dismissed. The Writ Petition
1 All] Radhey Shyam Srivastava V. State of U.P. and others
77
is accordingly dismissed. However, in the
facts and circumstances of the case, there
will be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 59703 of 2007

Radhey Shyam Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri C.L. Pandey
Sri Manoj Kumar

Counsel for the Respondents:
Sri M.C. Tripathi
S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal) Rules 1999-Rule-4-applicability
of CCA Rule upon employees of Nagar
Palika-of centerlised services-suspension
order
without
contemplation
of
disciplinary
proceeding
or
pendingnothing whisper in impugned order of
suspension-contention
of
standing
counsel the regarding preparation of
charge
sheet
worthless-held-once
validity of an order under challenge only
the contention are material it can not be
supplemented
by
subsequent
explanation-order can not sustainedwith liberty to pass fresh order if
required.

Held: Para 7, 11 & 17

The order of suspension impugned in this
writ petition also suffers from the same
illegality and, therefore, in our view it
cannot be sustained in view of the law
laid down in the case of Meera Tiwari
(Supra).

Thus, the law is well settled that an
order has to be tested on its own without
taking the aid of any affidavit or other
material as if it is supplementing the
reasons for validating the executive
order.

In the result, the writ petition succeeds
and is hereby allowed. The order dated
12th of September 2007 impugned in
this petition is quashed. However, it is
made clear that the respondents shall be
at liberty to pass a fresh order, if they so
decide in respect to suspension of
petitioner, in accordance with law. No
order as to costs.
Case law discussed:
2001 (3) UPLBEC-2057, AIR 1952 SC-16, AIR
1978 SC-851, 2005 (7) SCAVE-386, 2005 J.T.
(6) SC-60, 2007 (2) SCC-640, 1965 AIR SC304, AIR 2007 SC-1168, Spl. Appeal No. 180
of 2007 decided on 27.2.2007, W.P. 58427 of
2007 decided on 3.12.2007

(Delivered by Hon'ble S. Rafat. Alam, J.)

1. Heard learned counsel for the
parties. The learned counsel for the
parties agree that considering the legal
issues raised in this writ petition it may be
heard and decided finally at this stage.
The learned counsel for respondents also
states that he does not propose to file
counter affidavit, though opposed the writ
petition by making oral submission, and,
therefore, the writ petition has been heard
and is being disposed of finally at this
stage under the Rules of the Court.

2. The petitioner being aggrieved by
the order dated 12.09.2007 passed by the
Vice-Chairman,
Kanpur
Development
Authority placing him under suspension,
has come to this Court under Article 226
of the Constitution of India, seeking a writ