# Jugal Kishore Srivastava v. State Of U.P

- **Citation:** (2023) 9 ILRA 896
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-25
- **Case number:** Writ-C No. 1006884 of 2007
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jugal-kishore-srivastava-v-state-of-u-p-49241
- **Pages:** 10

## Headnote

Civil Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 (X) - Constitution of India, 1950 -
Articles 14, 16 & 311(2) - Petitioner was
in government service, due to serious
illness,
he
couldn't
submit
medical
certificate - Department initiated enquiry
and
issued
show
cause
notice
-
Considering his past misconduct, including
absconding in 1980, and assuming no
fresh enquiry needed, impugned order
passed - Charged employee (petitioner)
failed to respond to charges or appear
before Enquiry Officer despite due notice -
As per Rules, 1999, if charged government
servant fails to appear despite notice,
then Enquiry Officer can proceed ex parte
- Enquiry Officer did not proceed ex parte,
despite petitioner's non-appearance and
failure to submit reply concluded enquiry
in violation of Rules, 1999, thereby
vitiating
proceedings
-
Delay
is
immaterial,
as
petitioner
initially
approached wrong forum and never raised
question
of
maintainability
-
Upon
realizing Labour Court lacked jurisdiction,
he withdrew and filed present petition -
Enquiry stands vitiated in law, as order
suffers from illegality and infirmity -
Impugned order quashed - Respondent
directed
to
release
dues,
including
pension, for period 1991 to 2007. (Para
22, 24, 26, 31, 33, 34, 35)

Writ Petition partly allowed. (E-13)

List of Cases cited:

## Text

896 INDIAN LAW REPORTS ALLAHABAD SERIES
Cooperative Society the matter has to be
resolved
as
per
provisions
of
U.P
Cooperative Societies Act, 1965.

31. In the present case, the workman
had
approached
the
Labour
Court,
Lucknow
and
preliminary
objection
regarding maintainability had been raised
by the petitioners but was rejected by the
Labour Court by means of order dated
09.03.2010 and accordingly, the Labour
Court fell in error in rejecting the
preliminary objections by means of order
dated 09.03.2010. A Division Bench of this
Court has also relied upon the judgment in
the case of Ghaziabad Zila Sahkari Bank
Ltd.
(supra)
and
from
the
above
discussions, it is clear that the Labour
Court had no jurisdiction to entertain and
decide the said matter pertaining to a
Society constituted under the Act, 1965.

32. In light of the above, the
impugned award dated 23.04.2011 passed
by
the
Presiding
Officer,
Industrial
Tribunal
(2)
U.P.,
Lucknow
in
in
Adjudication Case No.113/1988 as well as
order dated 09.03.2010 are hereby set
aside.

33. The writ petition stands allowed.
----------
(2023) 9 ILRA 896
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.04.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ-C No. 1006884 of 2007

Jugal Kishore Srivastava ...Petitioner
Versus
State Of U.P. ...Respondent

Counsel for the Petitioner:
Rajendra
Nath,
Km.
Gitanjali
Shukla,
Nirankar Singh, R.K. Kidwai, Sunil Sharma,
Vinod Kumar Srivastava

Counsel for the Respondent:
C.S.C.

Civil Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 (X) - Constitution of India, 1950 -
Articles 14, 16 & 311(2) - Petitioner was
in government service, due to serious
illness,
he
couldn't
submit
medical
certificate - Department initiated enquiry
and
issued
show
cause
notice
-
Considering his past misconduct, including
absconding in 1980, and assuming no
fresh enquiry needed, impugned order
passed - Charged employee (petitioner)
failed to respond to charges or appear
before Enquiry Officer despite due notice -
As per Rules, 1999, if charged government
servant fails to appear despite notice,
then Enquiry Officer can proceed ex parte
- Enquiry Officer did not proceed ex parte,
despite petitioner's non-appearance and
failure to submit reply concluded enquiry
in violation of Rules, 1999, thereby
vitiating
proceedings
-
Delay
is
immaterial,
as
petitioner
initially
approached wrong forum and never raised
question
of
maintainability
-
Upon
realizing Labour Court lacked jurisdiction,
he withdrew and filed present petition -
Enquiry stands vitiated in law, as order
suffers from illegality and infirmity -
Impugned order quashed - Respondent
directed
to
release
dues,
including
pension, for period 1991 to 2007. (Para
22, 24, 26, 31, 33, 34, 35)

Writ Petition partly allowed. (E-13)

List of Cases cited:

1. Satwati Deswal Vs St. of Har. & ors., 2010(1)
SCC 126 (Para 5 to 9)

2. Mafatlal Narandas Barot Vs J.D. Rathod, AIR
996 SC 1364 (Para 12)
9 All. Jugal Kishore Srivastava Vs. State of U.P.
897
3. U.O.I.& ors. Vs Bishamber Das Dogra, (2009)
13 SSC 102 (Para 30, 31)

4. Tata Oil Mills Co. Ltd. Vs Their Workmen,
(1963)II LLJ. 78(SC)

5. Imperial Tobacco Co. Ltd. Vs Its Workmen,
AIR 1962 SC 1348

6. Uma Shanker Vs Registrar, 1992(65) FLR
674(All)

7. Subhash Chandra Sharma Vs Managing
Director,
U.P.
Co-operative
Spininng
Mills
Federation Ltd., Kanpur & anr. reported in
2000(1) UPLBEC 541

8. Durga Enterprises(P) Ltd. & anr. Vs Principal
Secretary, Govt. of U.P. & ors., reported in
(2004) 13 SCC 665

9. R.P. Pandey Vs U.P. Power Corp. Ltd. & ors.,
reported in 2004(22) LCD20

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Nirankar Singh, learned
counsel for the petitioner, Sri Kuldeep
Singh, learned Standing Counsel for the
State and perused the record.

2. By means of instant writ petition, a
challenge has been made to the order dated
19.01.2007 passed by respondent no.5 as
well as the order dated 30th July, 1991
passed by the respondent no.4.

3. Factual matrix of the case is that
the petitioner, at the very inception, joined
the services on 4th February, 1972 on the
post of Panchayat Sevak and served best of
the satisfaction of his superiors. On 15th
June, 1990, the petitioner was posted at
Vikas
Khand-Masodha,and
he
was
transferred and was relieved to serve at
Sohawal Block, District Faizabad. After the
transfer order was passed, the petitioner
could not join at the transferred place as he
was bed ridden and petitioner was suffering
with the acute mental depression and other
serious diseases, therefore, he could not
approach to the authorities concerned but
he had sent several applications as well as
medical prescription/ certificate issued by
the medical officer to the department.

4. Allegedly the authorities of the
department
never
communicated
the
petitioner that any departmental proceeding
has been initiated against him for his
alleged unauthorised absence and behind
the back of the present petitioner, the
aforesaid
enquiry
proceedings
were
completed and impugned order dated 30th
July, 1991 was passed.

5. Further, it is also the case of the
petitioner that the impugned order dated
30th July, 1991 never came into knowledge
of the petitioner, prior to year 2001 as he
was suffering with serious ailments and
was bed ridden and as soon as order dated
30th July, 1991 came into knowledge of the
petitioner, he immediately filed a case
before the labour court assailing the order
dated 30th July 1991. The case before the
labour court was registered as Case No. 56
of 2001 (Jugal Kishore Srivastava vs Zila
Panchayat Raj Adhikari, Faizabad).

The petitioner kept on persuading
the aforesaid case and ultimately the same
was decided on 19.01.2007. In the
aforesaid matter, the Distrtict Panchayat
Raj Adhikari who was representing the
department,
filed
objection/written
statement
by
way
of
submitting
reply/written statement and after the
aforesaid reply, the labour court decided
the
matter
on
19.01.2007,
wherein
following findings have been recorded. The
898 INDIAN LAW REPORTS ALLAHABAD SERIES
operative portion of the order are extracted
as follows:-

अभिभिर्णय

"उप श्रमायुक्त, िैजाबाद के आदेर् सं०-82529/एि.आर.सी.पी. 56/2009, स्दनांक 25-1-2002
द्वारा स्नम्नस्लस्खत आैैद्यौस्िक स्ववाद, उ०प्र० आैैद्योस्िक
स्ववाद अस्धस्नयम, 1947 की धारा - 2ए के अंतिशत
अस्िस्नणशय हेतु श्रम न्यायालय, िैजाबाद को प्रेस्षत स्कया
िया िा स्जसे अस्ि० स्ववाद सं० 02/2002 के रूप में
पंजीकृत कर सुनवाइश की जाती रही। तदोपरान्त उ०प्र० र्ासन
श्रम अनुिाि-I (र्ाखा सस्च०), कानपुर के आदेर् सं०
1853-67, स्दनांक 18-10-06 द्वारा इस न्यायालय को
थिानांस्तरत स्कया िया स्जसे अस्ि०स्व०सं० 313/2006
के रूप में पंजीकृत कर सुनवाइश की ियी।

औद्योभिक भििाद का भििरर्

''क्या सेवायोजक द्वारा अपने श्रस्मक श्री जुिल
स्कर्ोर पुत्र श्री द्वाररका प्रसाद को स्दनांक 7.9.2001 से
सेवा से पृिक/कायश से वंस्चत करना उस्चत एवं वैधास्नक है ?
यस्द नहीं तो सम्बस्न्धत श्रस्मक क्या क्षस्तपूस्तश/स्हतलाि पाने का
अस्धकारी है ? व अन्य स्कन स्ववरणों सस्हत ?

स्ववाद का संज्ञान लेकर उिय पक्षों को सम्मन
िेजकर न्यायालय के समक्ष उपस्थित होने के स्लए स्नदेस्र्त
स्कया िया। श्रस्मक के अस्धकृत प्रस्तस्नस्ध न्यायालय के समक्ष
उपस्थित हुये तिा अपना अस्धकार पत्र दास्खल स्कया।

स्दनांक 17.1.07 को वादी श्रस्मक के अस्धकृत
प्रस्तस्नस्ध ने 21/ए (नाट प्रेस) प्रािशना पत्र इस आर्य का
प्रथतुत स्कया स्क न्यायालय पत्रावली के अध्ययन के बाद यह
जानकारी प्राप्त हुई है स्क मेरा स्विाि राज्य सरकार का अंि है
स्जस कारण यह स्ववाद श्रम न्यायालय में नहीं चल सकता है।
इस तकनीकी त्रुस्ट के कारण प्रािी इस वाद को आिे नहीं
चलाना चाह रहा है।

उक्त तकनीकी त्रुस्ट को ध्यान में रखते हुए वादी
श्रस्मक के अस्धकृत प्रस्तस्नस्ध ने वाद को दास्खल दफ्तर करते
हुए अस्िस्नणशय स्दये जाने का अनुरोध स्कया है। श्रस्मक के
हथताक्षर को श्रस्मक के अस्धकृत प्रस्तस्नस्ध ने प्रमास्णत स्कया।

उपरोक्त वाद में सेवायोजन पक्ष को रस्जथटडश नोस्टस
19/डी िेजा िया जो पोथटमैन के ररमाकश ''दररयािा सही पता नहीं,
सही पता के स्लए वापस'' के साि वापस प्राप्त हुआ।

उक्त तथ्याैेैं
 एवं पररस्थिस्तयों को आधार मानक,
वादी श्रस्मक के अस्धकृत प्रस्तस्नस्ध द्वारा दास्खल प्रािशना पत्र 21/ए
(नाट प्रेस), स्दनांस्कत 17.1.07 को एतद्द्वारा थवीकार स्कया
जाता है तिा वाद की कायशवाही समाप्त की जाती है। वादी श्रस्मक
कोई स्हतलाि पाने का अस्धकारी नहीं है।"

6. By the aforesaid order, case filed
before the labour court was consigned to
record, as on 17.01.2007, the petitioner
himself filed an application stating therein
that he had filed the aforesaid case on
wrong advice as he being the government
employee can not be entertained by the
labour court and as such the labour court
dropped the proceedings.

7. In the year, 2007, when the matter
was ultimately closed before the labour
Court then the petitioner filed this writ
petition assailing the order of the labour
court as well as order dated 30th July 1991
passed by District Panchayat Raj Adhikari,
Faizabad.

8. Learned counsel appearing for the
petitioner submits that the petitioner was
relieved from Amaniganj on 15-06-1990
though he was bed ridden due to acute
mental depression with other ailments and
therefore, he could not join at the place of
his posting. Since, the petitioner was bed
ridden upto the year 2001 due to his
prolonged serious ailment and when he
became
physically
fit,
he
sent
an
application and informed that due to
illnesss, he was not able to join on the post.
The reply which was submitted by the
respondent department before the labour
court transpires that the services of the
petitioner were terminated on 30-07-1991,
9 All. Jugal Kishore Srivastava Vs. State of U.P.
899
though, no opportunity of hearing was
accorded to the petitioner prior to passing
of the order aforesaid. He next added that
allegedly the departmental proceedings
were initiated against the petitioner, and he
was suspended though the same were never
communicated to the petitioner and further
the
petitioner
was
never
paid
the
subsistence
allowance
and
thus,
the
termination order dated 30-07-1991 is void
ab-initio.

9. Argument advanced by the learned
counsel for the petitioner with respect to
the procedure for imposing major penalty
has been envisaged in Rule 7 of the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999(hereinafter referred to
as Rules,1999). In the aforesaid Rules,
detailed procedure has been prescribed in the
case of awarding major penalties. Since, the
Enquiry Officer appointed under Rules, 1999
acts as a quasi judicial authority and
therefore, the principle of natural justice must
have to adhere. He also added that the
procedure has also been provided under Rule
7(X) of the Rules, 1999, where the charged
government servant does not appear on the
date fixed in the enquiry or at any stage of the
proceeding inspite of the service of the notice
on him. For ready reference, the provision of
Rule 7(X) of the Rules, 1999 is extracted
hereinunder :-

(x)
Where
the
charged
Government servant does not appear on the
date fixed in the inquiry or at any stage of
the proceeding inspite of the service of the
notice on him or havging 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 Goverment
servant."

10. Referring the aforesaid Rule, he
submits that the controversy in the instant
matter is that the delinquent employee did
not appear before the Enquiry Officer and
therefore,
the
Enquiry
Officer
has
concluded the enquiry,but, the Enquiry
Officer while proceeding with the alleged
ex-parte enquiry, did not act in accordance
with the mandate of Rule 7(X) of Rules,
1999.

11. Further submission of learned
counsel for the petitioner is that despite so
many
applications
and
medical
prescriptions as well as medical certificates
submitted
before
the
departmental
authorities, the petitioner was neither
communicated
that
any
departmental
proceeding has been initiated or they are
going to consider such applications and
certificates.
All
the
departmental
proceedings have been done behind the
back of the petitioner and the opportunity
of hearing was not accorded to the
petitioner and the departmental proceedings
have been concluded dehorsing the Rules,
1999. He added that violating the principles
of natural justice as well as the provisions
prescribed under Rules, 1999, the enquiry
proceedings have been concluded and the
major punishment has been awarded to the
petitioner, which infringes the rights of the
petitioner, guaranteed under Articles 14
and 16 as well as 311(2) of the Constitution
of India.

12. Explaining the delay and laches, it
has been submitted by the learned counsel
for the petitioner that same are not
deliberate and intentional or negligent act
in filing the present writ petition, as the
petitioner was bed ridden due to acute
mental depression and other diseases, upto
the year 2001 and thereafter, as soon as he
became physically fit, he preferred a case
900 INDIAN LAW REPORTS ALLAHABAD SERIES
before the Labour Commissioner, which
was dismissed vide order dated 19-01-2007
and the reference too was dismissed on 2305-2007. Since, the petitioner filed the
aforesaid case on wrong advice and
therefore, there was no deliberate delay or
laches on the part of the petitioner.

13. He has further drawn attention of
this court that even assuming that the
present petitioner has avoided to appear
before
the
Enquiry
Officer
in
the
departmental
proceedings,
it
was
incumbent upon the Enquiry Officer to
proceed with the enquiry proceedings as
per the provisions emanates in Rule 7(X) of
the Rules, 1999. But, so far as the present
matter is concerned, the procedure with
respect to ex-parte enquiry has not been
followed by the Enquiry Officer and
directly, the order of termination has been
passed.

14. He further submits that in fact the
instant writ petition is maintainable before
this Court even there is provision of filing
an appeal before the State Government as
since it is well settled law that alternative
remedy would not be an absolute bar where
there is violation of principle of natural
justice or the order under challenge is
passed without jurisdiction and the present
matter is the best example of gross
violation of principle of natural justice as
no opportunity of hearing accorded to the
petitioner

15. Adding his arguments, he
submits that the matter is pending
consideration before this court since year
2007 and after passing of more than
fifteen years, no frutiful purpose would
be subserved to remit it back to the state
government for opening the door of filing
an appeal.

16. Placing the aforesaid argument,
learned counsel for the petitioner has relied
upon a judgment reported in 2010(1) SCC
126 Satwati Deswal vs State of Haryana
and others and referred the para 5, 6, 7, 8
and 9 which are extracted as follows;

" 5. In our view, the High Court
had fallen in grave error in rejecting the
writ petition on the aforesaid ground. First,
such an order of termination was passed
without issuing any show cause notice to
the appellant and without initiating any
disciplinary proceedings by the authorities
and without affording any opportunity of
hearing. It is well settled that a writ
petition can be held to be maintainable
even if an alternative remedy available to
an aggrieved party where the court or the
tribunal lacks inherent jurisdiction or for
enforcement of a fundamental right; or if
there had been a violation of a principle of
natural justice; or where vires of the act
were in question.

6.
The
aforesaid
exceptions
recognized by this Court were taken note of
by this Court in the case of A.V.
Venkateswaran, Collector of Customs,
Bombay v. Ramchand Sobhraj Wadhwani
and another (AIR 1961 SC 1506), in which
the Constitution Bench laid down the
principles of the above exceptions when
writ application could be entertained even
if an alternative remedy was available to
an aggrieved party. The same view was
expressed by this Court in the case of L.K.
Verma v H.M.T. Ltd. & Anr. (AIR 2006 SC
975)
and
M.P.State
Agro
Industries
Development Corporation & Anr. v. Jahan
Khan (AIR 2007 SC 3153).

7. Such being the position and in
view of the admitted fact in this case that
before termination of the services of the
9 All. Jugal Kishore Srivastava Vs. State of U.P.
901
appellant, no disciplinary proceeding was
initiated nor any opportunity of hearing
was given to the appellant. It is clear from
the record that the order of termination
was
passed
without
initiating
any
disciplinary
proceedings
and
without
affording any opportunity of hearing to the
appellant. In that view of the matter, we are
of the view that the writ petition was
maintainable in law and the High Court
was in error in holding that in view of
availability
of
alternative
remedy
to
challenge the order of termination, the writ
petition was not maintainable in law.

8. Apart from that, on a cursory
look of the statutory provision of the
Constitution of the Parishad Working
Committees, it would be clear that before
imposing any major penalty against an
employee, namely, an order of termination
of service, an inquiry must be held in the
manner specified in the statutory rules by
which the disciplinary authority shall frame
definite charges on the basis of allegations
on which an inquiry shall be proposed and
opportunity must be given to the employee
to submit a written statement stating
therein whether he/she desires to be heard
in person and no order of termination also
can be passed without the approval of the
Managing Committee. On this count alone,
therefore, the High Court was, in our view,
in grave error in dismissing the writ
petition of the writ petitioner.

9. Accordingly, the impugned
judgment of the High Court is set aside and
the order of termination passed against the
appellant is quashed and the writ petition
stands allowed. However, it would be open
to the authorities, if so desire, to initiate
disciplinary
proceedings
against
the
appellant for her termination from service
and if such disciplinary proceedings are
initiated, the authorities shall give proper
opportunity of hearing and permit the
parties to adduce evidence in support of
their respective stands and after giving
such
opportunity,
the
disciplinary
authorities thereafter shall give hearing to
the appellant and then pass a final order on
the question of termination of service of the
appellant in compliance with the concerned
statutory rules applicable to the appellant."

17. He has further placed reliance
upon the case reported in AIR 996 SC
1364, Mafatlal Narandas Barot v. J.D.
Rathod, and has referred para 12 of the
abovesaid judgment, which is extracted as
under;

"12. It is true that the respondent
may visit the punishment of discharge or
removal from service on a person who has
absented himself without leave and without
reasonable cause, but this cannot entail
automatic removal from service without
giving such person reasonable opportunity
to show cause why he be not removed. The
appellant is entitled to a reasonable
opportunity to show caue which includes
an opportunity to deny his guild and
establish his innocence with he can do only
when he knows what the charges levelled
against him are and the allegations on
which such charges are based. In our
judgment, the appellant was entitled to an
opportunity to show cause against the
action proposed to be taken against him."

18. While referring the aforesaid
judgments, he submits that in fact an
employer is under obligation to conduct
due enquiry, even if the delinquent
employee has absented himself before the
enquiry
officer
as
there
cannot
be
automatic removal from service, without
following due process of law.
902 INDIAN LAW REPORTS ALLAHABAD SERIES

19. He also quoted the provisions of
Rules, 1999 wherein, there is provision of
ex parte enquiry and as such he submits
that in fact even if the petitioner was not
appearing before the enquiry officer, the
enquiry officer was under obligation to
conclude
the
enquiry,
adhering
the
provisions of an ex parte enquiry, as
provided under 'Rules, 1999', which has not
been followed. Therefore, submission is
that the writ petition may be allowed and
the impugned orders dated 19-01-2007 and
30-07-1991, may be quashed.

20.

Countering
the
aforesaid
submissions, learned Standing Counsel
appearing for the State has vehemently
opposed the contentions aforesaid and
submits that in fact the writ petition is not
maintainable on the ground that the
petitioner has efficacious and alternative
remedy to file an appeal before the State
Government. He further added that in fact
so far as the assertion of the petitioner is
concerned
that
he
has
given
the
applications annexing therein the medical
prescription
and
medical
certificate,
regarding ailments that too was never
received in the office of the department. He
also contended that in fact the show cause
notices were issued but the same was not
responded and as such the enquiry
proceeding
was
concluded
and
the
disciplinary authority passed the order
dated 30th July, 1991.

21. In support of his contentions, he
has relied upon a case report in (2009) 13
SSC 102 Union of India and others vs.
Bishamber Das Dogra and has referred
paragraph 30 and 31 of the judgment which
are extracted as follows:-

"30. In view of the above, it is
evident that it is desirable that the
delinquent employee may be informed by
the disciplinary authority that his past
conduct would be taken into consideration
while imposing the punishment. But in case
of
misconduct
of
grave
nature
or
indiscipline, even in the absence of
statutory rules, the authority may take into
consideration
the
indisputable
past
conduct/service record on the employee for
adding the weight to the decision of
imposing the punishment if the facts of the
case so require.

31. It is settled legal proposition
that habitual absenteeism means gross
violation of discipline [vide Burn & Co.
Ltd. v. Workmen20 (AIR p. 530, para 5)
and L&T Komatsu Ltd. v. N. Udayakumar
21 (SCC p. 226, para 6).]

22. Having heard the learned counsel
for the parties and after perusal of records,
it reveals that the petitioner was said to be
suffering with serious ailments and as such
he could not sent application to the
department along with medical certificate.
Further the department started enquiry and
show cause notice was issued and there was
past misconduct of the petitioner, as he
absconded earlier in year 1980 and
therefore, under impression that no fresh
enquiry is required, after show cause notice
issued, therefore, the order dated 30th July,
1991 was passed.

23. The petitioner was in government
service, thus while having at a glance over
the relevant provisions of U.P. Government
(Discipline and Appeal) Rules, 1999
(hereinafter referred to as Rules,1999),
Rule 7 of the Rules, 1999, it emerges that
where a charged government servant does
not appear on the date fixed, in the enquiry
or any of the stage of the disciplinary
proceedings (even having the knowledge of
9 All. Jugal Kishore Srivastava Vs. State of U.P.
903
the date), despite the notice is served upon
him or her, the Enquiry Officer, shall
proceed with the ex-parte enquiry, wherein
the statements of the witnesses mentioned
in the chargesheet, shall also be recorded.

24. 'Rules 1999', clearly indicates, the
exigency, where the delinquent/charged
employee deliberately avoids to associate
him with the enquiry, proceedings, it is
open to the Enquiry Officer to proceed with
ex-parte enquiry, meaning thereby that even
the delinquent employee does not respond
either presenting himself or by way of
responding through his reply, the Enquiry
Officer is duty bound to proceed with the
enquiry, exparte and therefore, in all the
eventualities, the enquiry proceedings will go
to its logical end. In the present matter, it is
apparent that the charged employee has
neither filed any reply to the charges levelled
against him vide the chargesheet nor he ever
appeared before the Enquiry Officer, even
after service of notice and the date, time and
place fixed by the Enquiry Officer.

25. Now the question cropped up that
whether
in
case,
an
employee
is
unauthorizedly absent from duty, the exparte departmental inquiry is required, even
if there is misconduct of such employee in
past also. Further, if the delinquent
employee does not appear and respond in
the enquiry, whether due enquiry is
required in such events?

26. The procedure for conducting the
disciplinary enquiry is envisaged in Rules,
1999, wherein it is mandated that in case,
the charged government servant does not
appear on the date fixed in the enquiry or at
any stage of the proceedings, inspite the
service of notice, the Enquiry Officer is
duty bound to proceed with the exparte
enquiry proceedings.

27. Law is settled as in the case of
Tata Oil Mills Co. Ltd. Vs Their Workmen,
(1963)II LLJ. 78(SC), Imperial Tobacco
Co. Ltd. Vs Its Workmen, AIR 1962 SC,
1348 and Uma Shanker Vs. Registrar,
1992(65)
FLR
674(All)
and
it
has
categorically been held that even if the
charged employee refuses to participate in
the
enquiry,
the
employer
cannot
straightaway dismiss him, but, he must
hold an exparte enquiry.

28. Again in the case of Subhash
Chandra Sharma Vs. Managing Director,
U.P.
Co-operative
Spininng
Mills
Federation Ltd., Kanpur and another
reported in 2000(1) UPLBEC 541, the
court has held as follows :-

"In
our
opinion
after
the
petitioner replied to the charge-sheet a
date should have been fixed for the enquiry
and the petitioner should have been
intimated the date, time and place of the
enquiry and on that date the oral and
documentary
evidence
against
the
petitioner should have been led in his
presence and he should have been given an
opportunity to cross-examine the witnesses
against him and also he should have been
given an opportunity to produce his own
witnesses and evidence. If the petitioner in
response to this intimation had failed to
appear for the enquiry then an ex parte
enquiry should have been held but the
petitioner's service should have not been
terminated without holding an enquiry. In
the present case it appears that no regular
enquiry was held at all. All that was done
that after receipt of the petitioner's reply to
the charge-sheet he was given a showcause notice and thereafter the dismissal
order was passed. In our opinion this was
not the correct legal procedure and there
was violation of the rules of natural justice.
904 INDIAN LAW REPORTS ALLAHABAD SERIES
Since no date for enquiry was fixed nor any
enquiry held in which evidence was led in
our opinion the impugned order is clearly
violative of natural justice."

29. The aforesaid ratio of the
Judgments are based on the principles of
law that the initial burden is on the
department to prove charges against the
delinquent employee, where there are
charges leading to major penalty and it is
further borne out that the Enquiry Officer
has to adduce evidence and to hold enquiry
as well.

30. It is settled law that the inquiry
officer discharges his duties as quasijudicial officer and thus, his entity is
different than his post or lien in the
department and he has to search out the
truth, being impartial and judicious. Since
the major punishment awarded to an
employee is profound impact therefore, the
rules must be followed in strict manner and
the principles of natural justice shall be
taken care of.

31. Thus, admittedly, the Enquiry
Officer did not proceed with the exparte
inquiry as it is alleged that the present
petitioner deliberately did not appear before
the Enquiry Officer and he did not file any
response in the form of reply and therefore,
charges are proved, therefore, the Enquiry
Officer concluded the enquiry, ignoring the
provisions envisaged under Rule 7(X) of
Rules, 1999, which vitiates the enquiry
proceedings.

32. Coming to the issue of alternative
remedy, this court has noticed that the
matter is pending before this court since the
year 2007 and about more than 15 years
have been passed and therefore, the
alternative remedy would not come in the
way to decide the matter finally by this
court while invoking jurisdiction under
Article 226 of the Constitution of India.
The question of maintainability on the
ground of alternative remedy has been
settled in the case of Durga Enterprises(P)
Ltd. And Another Vs Principal Secretary,
Govt. of U.P. and Others, reported in
(2004) 13 SCC 665, by the Apex Court
while holding that in the writ petitions in
which, the pleadings are complete, ought to
have been decided on merits, instead of
relegating
the
parties
to
the
other
alternative forums. The analogy behind the
said ratio that the rule of alternative remedy
is rule of convenience and the same should
not be applied in a strict manner and
particularly, in the cases, which are
pending before the High Courts for a long
period of time. The abovesaid ratio has
again been reiterated by the Division Bench
of this court in the case reported in
2004(22) LCD,20, R.P. Pandey Vs. U.P.
Power Corporation Ltd. and Others.

33. So far as the delay in filing the
writ petition is concerned, it is evident that
petitioner has chosen wrong forum, though
he has filed a case before the labour court
and State filed objection/written statement
but
never
raised
question
of
maintainability. It is the petitioner, who
himself came forward and submitted an
application and averred that since the
petitioner is Government employee and as
such, the jurisdiction of labour court would
not lie and as such labour court dropped the
proceeding and petitioner approached this
Court by filing the instant writ petition, and
as such, it is immaterial in the present case.

34. In view of the aforesaid
submissions and discussions, this court is
of considered opinion that the enquiry
proceedings vitiate in the eyes of law as the
9 All. Ram Kali Devi Vs. State of U.P. & Ors.
905
order dated 30-07-1991, assails illegality
and infirmity.

35. Consequently, the impugned order
dated 30-07-1991 is hereby quashed. Since, the
delinquent employee has retired and therefore,
no fruitful purpose would be sub-served to remit
back the matter to proceed for a fresh enquiry,
therefore, the respondent no. 4 is hereby directed
to pay the dues including the pension considering
the period of year 1991 to 2007.

36. It is made clear that department is not
under obligation to pay back wages, under the
settled proposition of law, namely of 'no work
no pay.'

37. Consequently, the writ petition is
partly allowed.

38. No order as to costs.
----------
(2023) 9 ILRA 905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 3000014 of 1991

Ram Kali Devi ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Govind
Saran
Nigam,
Abhisht
Saran,
Govind Saran Nigam, Nirmal Tewari, Rahul
Kumar Kashyap, V.R. Singh

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section 13-A -
Scope and limitation - Recall of final order
passed on merits - Permissibility - Order
dated
16.03.1991
discharging
notice
under Section 10(2), passed after due
contest and appearance by State through
Naib Tehsildar - Application for recall filed
by St. under Section 13-A on ground of
non-appearance
of
counsel
-
Held:
Prescribed Authority becomes functus
officio after final adjudication - Section
13-A permits only rectification of mistake
apparent on face of record - No such
mistake shown - Recall not maintainable -
Proper remedy was appeal under Section
13 - Impugned order allowing recall
application quashed.

Held: Section 13-A of the Act empowers the
Prescribed
Authority
to
correct
mistakes
apparent on the face of the record within two
years, but does not vest review jurisdiction.
Where the matter had been duly contested and
decided on merits, allowing recall merely on the
ground that St. counsel was not present, despite
participation by the Naib Tehsildar, amounts to
misuse of Section 13-A. Application was in
essence a review and not a correction, hence
not maintainable.

J - Followed: Jwala Prasad Singh Vs District
Judge, Writ-C No. 965 of 1978, decided on
13.11.1978

 - Relied on: Devendra Nath Singh Vs Civil
Judge, Basti, (1999) 1 SCC 71

Writ Petition Allowed - Impugned order
dated 16.04.1991 set aside.

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Abhisht Saran, learned
counsel for petitioner as well as learned
Standing Counsel for respondents.

2. By means of the present writ
petition the petitioner has challenged the
order
dated
16.04.1991
passed
by
Additional District Magistrate/prescribed
Authority under the Ceiling Act whereby
he has allowed the application preferred by