# Jalaluddin Ansari v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-09
- **Bench:** Saaed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jalaluddin-ansari-v-state-of-u-p-and-ors-42537
- **Pages:** 11

## Headnote

Constitution
of
India,
Art.
226-
Dismissal-after charge sheet-receiving
reply-without fixing date-time and place
for enquiry-without supplying enquiry
report-without show cause notice-before
inflicting major punishment-held clear
violation of Natural Justice-considering
already retirement direction issued to
release 50% arrears of salary and other
pensionery benefits-treating petitioner
in continuous service.

Held: Para-16 & 17

## Text

1020 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

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iqujh{k.k dze'k% osru cSaM &2 :0 9300 &34800 ,oa
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9300& 34800 xszM osru :i;k 4200 ds inks ij
rSukrh fn, tkus ls muds osru ,oa ,oa Lrj dk
laj{k.k (protection of pay and status) gks
tkrk gSA "

7. A rejoinder affidavit has been filed
stating that the decision taken by the State
Government cannot be termed as compliance
of the order of this Court as well as Hon'ble
Apex Court in letter and spirit and the State
Government has wrongly processed the
matter and tried to create confusion. Certain
judicial pronouncements have been referred
in the rejoinder affidavit for the proposition
of violation of the natural justice, concept of
restitution and also the proposition that a
conduct of a party assumes significance in
moulding the reliefs and to do complete
justice between the parties, all relevant aspect
of the matter are to be considered. As a
matter of fact, the averments in the rejoinder
affidavit and thrust of the argument of the
learned counsel for the applicants is to
challenge the merits of decision taken by the
State Government.

8. It is well settled that the legality and
the merits of the order passed by an authority
in compliance of the directions issued by the
Court is not normally to be tested in
contempt jurisdiction. It is only in the case
where on the face of it, the compliance
appears to be an eyewash and order passed
by the court does not appear to be carried out
in letter and spirit, the contempt court may
test the order passed by the authority in order
to satisfy itself whether there is actual
compliance or it is merely an eyewash in
order to avoid contempt proceeding.

9. In the present case, the direction
issued by the Division Bench of this Court,
affirmed by the Hon'ble Apex Court was to
reconsider the feasibility of protection of pay
and status of the applicants. On an analysis
of the entire facts and circumstances as well
as decision taken by the State Government in
compliance of the order, this Court finds that
the order passed by the Division Bench has
been complied in letter and spirit and it
cannot be said to be a merely eyewash in
order to wriggle out of the contempt
proceeding. In so far as the legality and
merits of the order on various grounds urged
on behalf of the applicants, it is not for this
Court to enter into the same. Needless to say
that in such a situation the remedy of the
applicants lies by undertaking appropriate
proceeding before appropriate forum.

10. Since the order passed by the
Division Bench of this Court and affirmed
by the Hon'ble Apex Court, in the opinion
of the Court, stands complied with in
letter and spirit, the contempt proceedings
are not liable to be proceeded any further.
Contempt
notice
accordingly
stand
discharged.

11. Let the contempt petition be
consigned to record.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2013
2 All] Jalaluddin Ansari Vs. State of U.P. and Ors.
1021
BEFORE
THE HON'BLE SAAED-UZ-ZAMAN SIDDIQI, J.

Service Single No.5189 of 1995

Jalaluddin Ansari

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

Counsel for the Petitioner:
Sri S.K. Dixit, Sri Sanjay Kumar

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.
226-
Dismissal-after charge sheet-receiving
reply-without fixing date-time and place
for enquiry-without supplying enquiry
report-without show cause notice-before
inflicting major punishment-held clear
violation of Natural Justice-considering
already retirement direction issued to
release 50% arrears of salary and other
pensionery benefits-treating petitioner
in continuous service.

Held: Para-16 & 17
16. In view of the above, I am of the
considered
opinion
that
the
departmental enquiry conducted against
the petitioner, on the basis of which, the
punishment of dismissal from service
was
awarded,
was
not
held
in
accordance with law as propounded by
the Hon'ble Apex Court as well as this
Court as discussed above. There is clear
violation of rules of natural justice.

17. In view of the discussions made
above writ petition is allowed. The
dismissal of the petitioner is set aside.
The petitioner was of the age of 49 years
as mentioned in the writ petition when
this writ petition was filed in the year
1995. He must have attained the age of
superannuation about 9 years back. I do
not find it proper case where liberty can
be given for initiating fresh enquiry. I
accordingly direct that the petitioner
shall be paid all the retiral dues and 50
per cent salary for the period he
remained dismissed from the service till
the date of superannuation within 90
days from the date of production of a
certified
copy
of
this
order.
While
holding so I rely upon the law laid down
by the Hon'ble Apex Court in the case of
Life Insurance Corporation of India and
another v. Ram Pal Singh Bisen, (2010) 4
SCC 491 and a Division Bench of this
Court in Ambika Prasad Srivastava v.
State Public Services Tribunal, Lucknow
and others [2004 (22) LCD 770].

Case Law discussed:
[2008(26) LCD 1522]; [2003 (21)LCD 610;
(2006) 5 SCC 88; (2002) 7 SCC 142; 1983 (1)
LCD 169; 1984 (2) LCD 396; (2001) 1 UPLBEC
331; 2003 (21) LCD 610; [2011 (29) LCD
832]; (2010) 4 SCC 491; [2004 (22) LCD 770]

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. By means of the instant writ
petition
under
Article
226
of
the
Constitution of India, the petitioner has
sought for a writ in the nature of certiorari
quashing the order of dismissal dated
8.11.1995 and writ in the nature of
mandamus commanding the opposite
parties not to give effect to the impugned
order and reinstate the petitioner in
service with effect from 8.11.1995, pay
him salary and all other consequential
benefits together with 12 per cent interest.

2. Brief facts leading to filing of
instant writ petition are that the petitioner
was posted as Assistant Agricultural
Inspector at Tarabganj, District Gonda in
the year 1984 and he was on sanctioned
leave with effect from 14.10.1984 till
21.10.1984.
In
the
meantime,
the
petitioner was attached to the office and
one Kameshwar Singh posted at his place
who took charge of godown where
fertilizer was stored. In the absence of the
1022 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
petitioner stock was checked and found
short and an FIR was lodged against the
petitioner and criminal proceedings were
initiated. The departmental proceedings
were initiated on the ground of alleged
embezzlement and the petitioner was
placed under suspension by opposite party
no.2. The petitioner filed writ petition
no.3549 (SS) of 1986 which was finally
disposed of vide order dated 2.6.1986 to
the following effect:-

"APPLICATION FOR STAY

LUCKNOW DATED: 2.6.1986.

Hon'ble D.S.Bajpai, J.

Heard learned
counsel
for the
petitioner. The learned Standing counsel,
in pursuance to my order dated 26th May,
1986 has not been in a position to indicate
or bring on record any thing to indicate
the
progress
of
the
disciplinary
proceedings
in
pursuance
of
the
suspension order dated 13th November,
1984. In this view of the matter, the
suspension order appears on the face of it
to be a penal and cannot be sustained for a
long time, serve in the instant case a
period of about 18 months has passed.
The order of suspension dated 13th
November,
1984
is
accordingly,
suspended and it is directed that the
petitioner shall be permitted to perform
his duties and get his full salary. The
Authorities concerned shall be at liberty
to
proceed
with
the
disciplinary
proceedings in case they feel that this is
any material against the petitioner.

sd/-D.S.Bajpai,

2.6.1986."

3. Subsequently charge sheet was
submitted by opposite party no.2 on
7.1.1986 to which reply was submitted by
the petitioner on 8.8.1988, but the same
was not considered by the opposite parties
and a show cause notice was issued to the
petitioner by which the alleged amount of
embezzlement
was
increased
from
Rs.2,64,656.21 paise to Rs.3,29,998.99
paise, contained in Annexure No.13 to the
writ petition. A supplementary charge
sheet dated 29.09.1989 was also served
upon the petitioner. The petitioner filed a
writ petition, in which following order
was passed on 19.11.1993:-

"Lucknow Dated:19.11.1993.

Hon'ble Mrs. Smt. Shobha Dikshit, J.

Learned Standing Counsel accepts
notice and prays for time to seek
instructions or file counter affidavit he is
allowed ten days for the purpose. List on
6.12.1993 when the learned counsel will
inform as to whether any final order have
been passed or not as also the state of
Criminal Trial pending against him."

 sd/- Smt. S.Dikshit.

 19.11.1993."

4. The opposite party no.2 passed
dismissal order in an arbitrary manner,
without application of mind and no
opportunity was afforded to the petitioner
to defend him with mala fide intention
which is violative of Articles 14 and 16 of
the Constitution of India and principles of
natural justice. The copy of report of
enquiry officer was not provided to the
petitioner. The opposite parties did not
permit the petitioner to cross examine the
witnesses though several representations
were moved which are still pending.
Through amendment the petitioner added
para nos.24 (a) to 24 (z) and para nos.24
(aa) to 24(j). Grounds and prayer clause
were also amended. Pleadings have been
exchanged.
2 All] Jalaluddin Ansari Vs. State of U.P. and Ors.
1023

5. Heard learned counsel for both
the parties and perused the records.

6. Admittedly, the petitioner was
employee of the opposite parties and
during his absence the stock of fertilizer
were checked and embezzlement as
detected for which FIR was lodged
against the petitioner and departmental
enquiry was initiated. The petitioner was
placed under suspension which was
revoked after the indulgence of this court,
as mentioned above. The order passed by
opposite
party
no.2,
contained
as
Annexure No.1 shows that the petitioner
made requests to the enquiry officer for
cross examination of witnesses but the
petitioner did not submit the list of
questions to be asked to the witnesses
and, as such no evidence was taken by the
enquiry officer during the course of
enquiry.

7. It was argued by learned counsel
for the petitioner Sri Sanjay Kumar that
no evidence whatsoever was available
with the enquiry officer to proceed with
the enquiry to which learned Standing
Counsel prayed for placing the file of
enquiry report before this court which was
ultimately placed and after perusal of the
original file of the enquiry report learned
Standing Counsel conceded that no
evidence whatsoever was taken in this
enquiry. The report of enquiry officer
mentions that the petitioner was informed
that he may submit a list of documents
which he wants to peruse to which the
petitioner sought 15 days time but he did
not appear. Ultimately, the petitioner
submitted his written statement to the
charge sheet dated 8.8.1988 in which it
was mentioned that the evidence upon
which the charge is based have not been
mentioned in the charge sheet and he
wishes
to
cross-examine
14
officers/officials. This enquiry report also
mentions that the relevant documents and
evidence are deposited in the court where
criminal case is pending and he may
peruse the records in the learned Court
concerned. The enquiry report also
mentions that the petitioner was asked to
furnish the addresses of 14 person to
whom he wishes to cross-examine and
submit the list of questions but the
petitioner did not reply which shows that
the petitioner is sticking to his earlier
stand and he is delaying the disposal of
enquiry on the pretext of cross-examining
the witnesses. During the course of
enquiry several enquiry officers were
changed which finds place in the report
itself, which also mentions that several
other embezzlement were also considered
by the enquiry officer. Again the
petitioner moved an application dated
7.2.1990
for
cross-examining
14
officers/officials but he did not submit list
of questions and addresses of those
employees. In view of these facts the
petitioner was held guilty. The enquiry
report is very exhaustive but no relevant
fact in the eye of law as required by rules
of natural justice has been mentioned in
the enquiry report which is vertually
consists of rigmarole.

8. The proved facts as set out are
that the enquiry officer has held the
petitioner guilty on the basis of charge
sheet alone without perusing any evidence
and without affording opportunity to the
petitioner of being heard. The specific
plea is that the petitioner was on
sanctioned leave from 14.10.1984 to
21.10.1984.
During
the
period
of
petitioner's absence why the stock was
unlocked by breaking the lock, inventory
was prepared have not been considered by
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the enquiry officer, at all. Had there been
any emergecy for breaking lock and
checking the stock which was, as per
opposite parties, in the custody of the
petitioner, he should have been given a
notice that the petitioner has to appear on
such and such date for stock checking and
in case of his default the locks could have
been broken and material could have been
checked.
Mere
filing
of
FIR
and
prosecution in a Court of law cannot be
made basis of holding a government
servant guilty. The enquiry officer has not
at all considered as to why the lock was
broken on 23.10.1984 in the presence of
Magistrate and officers. It is well within
the knowledge of the opposite parties as
to who were present at the time of
breaking the lock, preparing inventory
etc. but in spite of this the opposite parties
are persistently directing the petitioner to
furnish the addresses of the employees to
whom he wants to cross-examine. It was
incumbent upon the enquiry officer to
have cross-examine all the 14 employees
who are witnesses to the episode and have
got the inventory and all other documents
prepared, proved legally and the petitioner
should have been afforded opportunity to
cross-examine them. Without any such
evidence the petitioner has been held
guilty which is violative of rules of rules
of natural justice. This court is repeatedly
pressing the legal position as settled by
various Courts and Hon'ble Apex Court. It
was obligatory on the part of the opposite
parties to have proved the charges which
were leveled against the petitioner but as
no
witness
was
examined
by
the
department to prove the charges, the
impugned dismissal order deserves to be
quashed.

9. In Parasu Ram Singh v.
Secretary
of
Agriculture,
U.P.,
Lucknow and Others, [2008 (26) LCD
1522], Division Bench of this Court has
held as under:-

"This Court has already held that
after the charge sheet is given to a
delinquent employee an oral enquiry is
must, whether the employee requests for
it or not. The record which has been
produced before us reveals that after
submission of reply to the charge sheet,
no date or time was fixed by the Enquiry
Officer for recording of evidence of the
witnesses on behalf of the Department to
prove the charges as also for the defence
witnesses for holding the enquiry. We are
of the view that the petitioner was not
given proper opportunity of hearing and
no oral enquiry as required by law was
held."

10. The Hon'ble Apex Court in the
case of Radhey Kant Khare Vs. U.P.
Cooperative
Sugar
Factories
Federation Ltd. reported in [2003 (21)
LCD 610] has also held as under:-

"8. After a charge sheet is given to
the employee an oral enquiry is a must,
whether the employee requests for it or
not. Hence a notice should be issued to
him indicating him the date, time and
place of the enquiry. On that date the oral
and documentary evidence against the
employee should first be led in his
presence vide A.C.C. Ltd. v. Their
Workmen (1963) II LLJ 396 (SC).
Ordinarily, if the employee is examined
first it is illegal vide Anand Joshi v.
MSFC 1991 LIC 1666 Bom., S.D.
Sharma v. Trade Fair Authority of India
1985 (II) LLJ 193, Central Railway v.
Raghubir Saran 1983 (II) LLJ 26. No
doubt in certain exceptional cases the
employee may be asked to lead evidence
first, vide Firestone Tyre and Rubber Co.
2 All] Jalaluddin Ansari Vs. State of U.P. and Ors.
1025
Ltd. v. Their Workmen AIR 1968 SC 236,
but ordinarily the rule is that first the
employer must adduce his evidence. The
reason for this principle is that the charge
sheeted employee should not only know
the charges against him but should also
know the evidence against him so that he
can properly reply to the same. Where no
witnesses were examined and no exhibit
or record is made but straightaway the
employee was asked to produce his
evidence and documents in support of his
case it is illegal vide P.C. Thomas v.
Mutholi Co-operative Society Ltd. 1978
LIC 1428 Ker, and Meenglas Tea Estate
v. Their Workmen AIR 1963 SC 1719."

In Suresh Chandra Srivastava v.
State of U.P. and Others, [2008 (26)
LCD 461], a Division Bench of this
Court has relied upon the law laid
down by the Hon'ble Apex Court in
M.V. Bijlani v. Union of India and
Others (2006) 5 SCC 88, Sher Bahadur
v. Union of India and Others (2002) 7
SCC 142, B.P. Chaurasia v. State of
U.P and Others 1983 (1) LCD 169,
Onkar Singh v. State of U.P. and
Others 1984 (2) LCD 396, Hardwari
Lal v. State of U.P. and Others (2001) 1
UPLBEC 331 and Radhey Kant Khare
v. U.P. Cooperative Sugar Factories
Federation Ltd. 2003 (21) LCD 610. In
Suresh Chandra's case this Court has held
as under:-

"....it is evident that according to the
law settled by Hon'ble the Apex Court, it
is always incumbent upon the Enquiry
Officer to record oral evidence with liberty to
the delinquent employee to cross-examine
such witnesses. After the evidence adducted
by the Department to prove the charges, it is
also necessary that the delinquent employee
be given the opportunity to lead evidence in
defence. In the case of Radhey Kant Khare
(Supra)
after
considering
various
pronouncements of Hon'ble the Apex Court
and this Court, a Division Bench of this Court
has held that after charge sheet is given to an
employee, oral enquiry is must. It is
immaterial whether the employee makes
request for it or not. Meaning thereby,
whether an employee submits reply to the
charge sheet or not, or even if an employee
submits reply to the charge sheet, it is always
incumbent upon the Enquiry Officer to record
oral evidence in the presence of the delinquent
employee. In case, the charged employee is
not present or does not cooperate with the
enquiry proceedings, even then it is necessary
for the Enquiry Officer to record the statement
of the witnesses orally by proceeding ex parte.

12. In Abdul Salam v. State of U.P.
and Others [2011 (29) LCD 832], a
Division Bench of this Court has relied
upon the law as under:-

"1. 2010 (2) SCC, page 772, State of
Uttar Pradesh & others Vs. Saroj Kumar
Sinha and others.

2. 2009(1) SCC (L&S) page 394,
Union of India & others Vs. Prakash
Kumar Tandon and others.

3. 2009 (1) SCC (L&S) page 398,
Roop Singh Negi Vs. Punjab National
Bank.

4. 2009 LCD, page 990(D/B),
Lucknow Kshetriya Grameen Bank Vs.
Devendra Kumar Upadhyay and others.

5. 2008 LCD, page 1298 (D/B), Smt.
Rajwati Sharma Versus U.P. State &
others.

6. 2005 LCD page 495 (D/B),
Govind Lal Srivastava versus State of
U.P. and others.

7. 2004 LCD, page 770 (D/B),
Ambika Prasad Srivastava Versus State
Public Services Tribunal and others.
1026 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

8. 2001 LCD, page 168 (D/B),
Subodh Kumar Trivedi Versus State of
U.P. and others."

and held as under:-

"Normally, the evidence by the
department is required to be led first to
prove the charges wherein the delinquent
is also allowed to participate, who can
cross-examine
the
witnesses,
with
opportunity of adducing the evidence
either in rebuttal or for disproving the
charges. It is thereafter that the enquiry
officer has to submit its report either
saying that any of the charges stand
proved
or
not.
There
has
to
be
corroborating evidence to prove the
charge and without any material being
placed by the department to substantiate
the documentary evidence, the charge can
not be found to be proved. There has to be
a corroboration of facts from the
documents on record and if any report is
also being relied upon, the said report is
also required to be authenticated by the
person who has submitted the report,
therefore, for this purpose the oral enquiry
is required to be held for proving the
charges."

13. In State of Uttar Pradesh and
others v. Saroj Kumar Sinha (supra)
the Hon'ble Apex Court has observed that
under Rule 7 (x), it is provided as under:-

"(x) Where the charged Government
servant does not appear on the date fixed
in the inquiry or at any stage of the
proceeding in spite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer shall proceed
with the inquiry ex parte. In such a case
the Inquiry Officer shall record the
statement of witnesses mentioned in the
charge- sheet in absence of the charged
Government servant."

27. A bare perusal of the aforesaid
sub-Rule shows that when the respondent
had failed to submit the explanation to the
charge sheet it was incumbent upon the
inquiry officer to fix a date for his
appearance in the inquiry. It is only in a
case when the Government servant
despite notice of the date fixed failed to
appear that the enquiry officer can
proceed with the inquiry ex parte. Even in
such circumstances it is incumbent on the
enquiry officer to record the statement of
witnesses mentioned in the charge sheet.
Since the Government servant is absent,
he would clearly lose the benefit of cross
examination
of
the
witnesses.
But
nonetheless in order to establish the
charges the department is required to
produce the necessary evidence before the
enquiry officer. This is so as to avoid the
charge that the enquiry officer has acted
as a prosecutor as well as a judge.

28. An enquiry officer acting as 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."
2 All] Jalaluddin Ansari Vs. State of U.P. and Ors.
1027

14. In Abdul Salam's case (supra)
Division Bench of this court has also held
as under:-

"15. The principles of natural justice
demand
that
an
application
for
summoning a witness by the delinquent
officer should be considered by the
enquiry officer. It was obligatory on the
part of the enquiry officer to pass an order
in the said application. He could not
refuse to consider the same. It is not for
the Railway Administration to contend
that it is for them to consider as to
whether any witness should be examined
by it or not. It was for the enquiry officer
to
take
a
decision
thereupon.
A
disciplinary proceeding must be fairly
conducted. An enquiry officer is a quasijudicial authority. He, therefore, must
perform
his
functions
fairly
and
reasonably which is even otherwise the
requirement of the principles of natural
justice."

In the case of Roop Singh Negi
Versus Punjab National Bank, while
emphasizing the importance of principles
of natural justice in the matter of
departmental enquiry, the Hon'ble Apex
Court has observed as under:

"14. Indisputably, a departmental
proceeding is a quasi judicial proceeding.
The Enquiry Officer performs a quasi
judicial 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.

15.We have noticed here-in-before
that the only basic evidence whereupon
reliance has been placed by the Enquiry
Officer was the purported confession
made by the appellant before the police.
According to the appellant, he was forced
to sign on the said confession, as he was
tortured in the police station. Appellant
being an employee of the bank, the said
confession should have been proved.
Some evidence should have been brought
on record to show that he had indulged in
stealing the bank draft book. Admittedly,
there was no direct evidence. Even there
was no indirect evidence. The tenor of the
report demonstrates that the Enquiry
Officer had made up his mind to find him
guilty as otherwise he would not have
proceeded on the basis that the offence
was committed in such a manner that no
evidence was left."

In the case of Smt. Rajwati Sharma
Versus U.P. State and others, a Division
Bench of this Court, in which one of us
(Justice Pradeep Kant) was a member,
while emphasizing the need to hold a full
fledge departmental enquiry even in case
where the charged employee had admitted
in his statement the loss of certain files
which were in his possession, observed as
under:

"12.The employee in the instant case,
only made a statement of fact, in his
reply, about the loss of 14 files. Since the
files were misplaced,there could not have
been any denial of the said fact by any
1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
person, including the charged employee.
The question was, whether Shri Krishna
was responsible for the loss of file or that
he was guilty of any misconduct. It is also
possible that in case, enquiry had been
held, circumstances might have come to
the fore, establishing, that even though the
files
were
misplaced
which
were
supposed to be in the custody of the
deceased employee but even then there
was some valid defence or mitigating
circumstances for not awarding of major
punishment or on finding that no fault
could be attributed to him, he might have
been exonerated.

In the case of Govind Lal Srivastava
versus State of U.P. and others, a Division
Bench of this Court, in which one of us
(Justice Pradeep Kant) was a member, has
observed as under:

"12. It is cardinal principle of law
that in a domestic enquiry the charges
levelled against the delinquent officer
have to be proved by the department
itself, that too from the material on record
and if necessary, by adducing evidence. In
doing so, it is obligatory on the enquiry
officer to give opportunity to the
delinquent officer to controvert, rebut
such evidence or to adduce such evidence,
which may falsify or belie the case of the
department. In nutshell the delinquent
officer has a right to demolish the case of
the department or prove his innocence,
but in no case the delinquent officer is
required to disprove the charges before
they are put to proof by the enquiry
officer through agency of the department.
The letter issued by the erstwhile enquiry
officer only says that the petitioner if
intends to have a personal hearing, may
appear on 20.10.1992 before him. It is
difficult to understand as to what the
enquiry officer meant by saying personal
hearing, whether it included the right to
adduce
evidence,
right
of
crossexamination and whether it also indicated
that any witness would be examined on
that date or documentary evidence, which
is on record or the record would be looked
into and in what respect personal hearing
would be done. It is always essential in
any proceedings where right of defence or
onus of establishing a charge is involved,
clear orders and intimation about the date,
time or place and the purpose for which
the date has been fixed, should be given
by the officer, who is holding the enquiry.
The delinquent would be hardly knowing
as to what reply and what additional facts,
he should mention before the enquiry
officer, when charges are not being said to
be proved and even before the steps being
taken for proving the charges. It is only
when the charges are sought to be proved
that the delinquent has a right to
controvert and rebut the same.

13. The procedure of domestic
enquiry need not be detailed by us, but it
is established principle of law that an
enquiry commences when a charge sheet
is issued, a reply is required to be
submitted by the delinquent officer, the
delinquent is at liberty to ask for the
documents in case the documents are
mentioned in the charge sheet but the
copies of the same have not been annexed
with the charge sheet, or the documents,
on which the charges are likely to be
proved and in case copy of some
documents can not be supplied then
opportunity
of
inspection
of
such
documents
has
to
be
provided.
Opportunity of inspection of documents
should be provided in a manner so that the
charged officer has free access to the
record and for which date, time and place
2 All] Jalaluddin Ansari Vs. State of U.P. and Ors.
1029
has to be fixed. It is only after the
aforesaid stages are over, the reply is
submitted by the delinquent officer and on
receipt of the reply, if the enquiry officer
finds that the charges are denied or in
other words, they are not accepted,
obligation lies upon the enquiry officer to
proceed with the enquiry. Even mere nonsubmission of the reply to the charge
sheet or not asking for opportunity of
producing witness or evidence would not
in itself be sufficient to hold that
opportunity was not availed by the
delinquent, though given. The enquiry
officer, on the date, time and place which
is to be fixed by him and intimated to the
delinquent officer, has to proceed with the
enquiry by first asking the department to
prove the charges by adducing such
evidence, which may be necessary for the
purpose and reply upon the documents,
which may be relevant and thereafter has
to afford an opportunity to the delinquent
to
cross-examine
the
witnesses
so
adduced or to produce any witness or
adduce any evidence in rebuttal. The
delinquent officer also has a right to show
to the enquiry officer that the evidence,
which is sought to be relied upon, is either
in admissible or hearsay or could not be
relied upon for any other valid reason. Of
course, if enquiry officer, after receipt of
the reply fixes date, time and place and
informs the same to the delinquent for
appearing and participating in the enquiry
but the delinquent even then does not
appear, the enquiry can be proceeded in
his absence, which may though be an exparte enquiry but would not be vitiated on
the ground that opportunity was not given
or if opportunity was given the same was
not availed of, by the delinquent. In a case
like this where ex-parte enquiry is to be
conducted, the enquiry officer is not still
absolved of getting the charges proved
from the evidence/material on record.

In the case of Ambika Prasad
Srivastava versus State Public Services
Tribunal, Lucknow and others, the
Division Bench of this Court, in which
one of us (Justice Pradeep Kant) was a
member,
while
emphasizing
the
importance of principles of natural justice
in the departmental enquiry held as under:

"In view of the admitted fact that no
opportunity was afforded to the petitioner
to participate in the enquiry and he was
not informed about the date, time and
place for holding the enquiry nor was
supplied the documents which were
demanded by him, and the enquiry report
was based simply on the reply submitted
by the petitioner, we find that the view
taken by the Tribunal otherwise, is
palpably
erroneous.
The
entire
proceedings are vitiated for violation of
principles of natural justice and not
affording opportunity to the petitioner."

15. It is not such a case where no
oral evidence was required as the guilt
could not have been proved by relying
upon the documents alone. If the
witnesses were not required to be
examined in support of the charges, even
then it was incumbent upon the enquiry
officer to have fixed the date, time and
place after submission of the reply to the
charge-sheet by the delinquent for holding
oral enquiry in order to appreciate the
evidences filed in support of the charges
in presence of the delinquent employee
and call upon the department to prove the
alleged charges. There is no denial about
the fact that such exercise was not done
by the enquiry officer in the present case.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

16. In view of the above, I am of the
considered opinion that the departmental
enquiry conducted against the petitioner,
on the basis of which, the punishment of
dismissal from service was awarded, was
not held in accordance with law as
propounded by the Hon'ble Apex Court as
well as this Court as discussed above.
There is clear violation of rules of natural
justice.

17. In view of the discussions made
above writ petition is allowed. The
dismissal of the petitioner is set aside. The
petitioner was of the age of 49 years as
mentioned in the writ petition when this
writ petition was filed in the year 1995.
He must have attained the age of
superannuation about 9 years back. I do
not find it proper case where liberty can
be given for initiating fresh enquiry. I
accordingly direct that the petitioner shall
be paid all the retiral dues and 50 per cent
salary for the period he remained
dismissed from the service till the date of
superannuation within 90 days from the
date of production of a certified copy of
this order. While holding so I rely upon
the law laid down by the Hon'ble Apex
Court in the case of Life Insurance
Corporation of India and another v.
Ram Pal Singh Bisen, (2010) 4 SCC 491
and a Division Bench of this Court in
Ambika Prasad Srivastava v. State
Public Services Tribunal, Lucknow and
others [2004 (22) LCD 770].
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