# L.K. Verma v. HMT Ltd. and Another

- **Citation:** (2011) 2 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Bench:** Sudhir Agarwal, Virendra Kumar-II
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/l-k-verma-v-hmt-ltd-and-another-46276
- **Pages:** 11

## Text

3-5 All. Janardhan Prasad Yadav Vs. State of U.P. & Ors.
955
resolution of the Board of Directors
passed in its 61st meeting held on
6.6.2018 was not there before the Apex
Court when the liberty was granted to
the petitioner.

12. Considering the aforesaid, we are
of the view that the resolution of the Board
of Directors dated 6.6.2018 by which a
decision has been taken to make payment
of
arrears
arising
out
of
6th
pay
commission
recommendation
w.e.f.
1.1.2006 to the employees of the ITTUP,
read with letter dated 21.12.2017 coupled
with the direction of Hon. Supreme Court
undoubtedly give rise to the fresh cause of
action to this limited extent.

13. Law in this regard is settled
that if there is fresh cause of action,
principle of res-judicata will not apply.
Hon'ble
Supreme
Court
in
Hope
Plantations Ltd. vs. Taluk Land Board,
Peermade and another; (1999) 5 SCC
590 has held as under:-

"31. Law on res judicata and
estoppel is well understood in India and
there
are
ample
authoritative
pronouncements by various courts on
these subjects. As noted above, the plea
of res judicata, through technical, is
based on public policy in order to put an
end to litigation. It is, however, different
if an issue which had been decided in an
earlier
litigation
again
arises
for
determination between the same parties
in a suit based on a fresh cause of action
or where there is continuous cause of
action......"

14. Considering the affidavits filed
by the contemnor coupled with the fact
that there was subsequent resolution of
the Board of Directors dated 6.6.2018
passed in the 61st meeting whereafter
respondent no.2 having approved the
payment of arrears arising out of 6th pay
commission w.e.f. 1.1.2006 and the
budgetary allocation having also been
provided and the matter was referred to
the State Government, as also keeping in
view the law laid down by Hon. Apex
Court, we are of the opinion that to this
limited extent, the writ petitioner has a
fresh cause of action with respect to the
payment of arrears of his salary in the
light
of
sixth
pay
commission
recommendation w.e.f. 1.1.2006 which
also included the petitioner for the first
time. The resolution dated 6.6.2018 was
not before any court earlier, which has
factually changed the entire situation.
Hence, we direct the State Government
to
take
a
decision
on
the
recommendation
of
the
Board
of
Directors in their 61st meeting for grant
of benefit available under 6th pay
commission report to the petitioner
w.e.f. 1.1.2006.

15. To the aforesaid extent, the order
impugned in this appeal is modified.

16. The appeal is, accordingly, partly
allowed.
----------

(2020)03-05ILR A955
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR-II, J.

Special Appeal No. 631 of 2007

Janardan Prasad Yadav ...Appellant
Versus
State of U.P. & Ors. ...Respondents
956 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
A.P. Singh

Counsel for the Respondents:
C.S.C.

A. Service - Inquiry/Dismissal - Petition
filed
against
punishment
order
of
dismissal was dismissed. While allowing
the present appeal, the Court held that
non-holding
of
oral
inquiry
before
imposing major penalty or removal would
vitiate the entire proceeding including
order of punishment. (Para 18)

B. In the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges - The
approach of the Enquiry Officer of automatic
prove of charges on account of non filing of
reply is clearly misconceived and erroneous;
against the principles of natural justice, fair play
and fair hearing. (Para 7, 19, 20)

C. Exception - When the facts are admitted or
no real prejudice has been caused to employee
or no other conclusion is possible, in such a
situation, the order shall not be vitiated. (Para
22)

Appeal allowed. (E-4)

Precedent followed:

1. Meenglas Tea Estate Vs. The Workmen, AIR
1963 SC 1719 (Para 9)

2. St. of U.P. Vs. C.S. Sharma, AIR 1968 SC 158
(Para 10)

3. P.N.B. Vs. A.I.P.N.B.E. Federation, AIR 1960
SC 160 (Para 11)

4. A.C.C. Ltd. Vs. Their Workmen, (1963) II LLJ.
396 (Para 11)

5. Tata Oil Mills Co. Ltd. Vs. Their Workmen,
(1963) II LLJ 78 (SC) (Para 11)

6. S.C. Girotra Vs. United Commercial Bank,
1995 Supp. (3) SCC 212 (Para 12)
7. Subhas Chandra Sharma Vs. Managing
Director & anr., 2000 (1) UPLBEC 541 (Para 13)

8. Subhas Chandra Sharma Vs. U.P. Cooperative Spinning Mills & ors., 2001 (2)
UPLBEC 1475 (Para 14)

9. St. of U.P. Vs. Saroj Kumar Sinha, (2010) 2
SCC 772 (Para 15)

10. Roop Singh Negi Vs. P.N.B., (2009) 2 SCC
570 (Para 16)

11. Rajesh Prasad Mishra Vs. Commissioner,
Jhansi Division, Jhansi & ors., 2010 (1) UPLBEC
216 (Para 17)

12. Subhash Chandra Gupta Vs. St. of U.P.,
2012 (1) UPLBEC 166 (Para 18)

13. Imperial Tobacco Co. Ltd. Vs. Its Workmen,
AIR 1962 SC 1348 (Para 19)

14. Uma Shankar Vs. Registrar, 1992 (65) FLR
674 (All.) (Para 19)

15. Mahesh Narain Gupta Vs. St. of U.P. & ors.,
(2011) 2 ILR 570 (Para 20)

16. Chamoli District Co-operative Bank Ltd. Vs.
Raghunath Singh Rana & ors., AIR 2016 SC
2510 (Para 21)

17. K.L. Tripathi Vs. S.B.I. AIR 1984 SC 273
(Para 22)

18. State Bank of Patiala Vs. S.K. Sharma, AIR
1996 SC 1669 (Para 22)

19. Biecco Lawrie Ltd. Vs. West Bengal, (2009)
10 SCC 32 (Para 22)

Precedent distinguished:

1. L.K. Verma Vs. HMT Ltd. & anr., (2006) 2
SCC 269 (Para 4, 23 to 25) (E-4)

Present appeal is against judgment dated
20.04.2007, passed in Writ Petition No.
484 (S/S) of 1987.

(Delivered by Hon'ble Sudhir Agarwal, J.
3-5 All. Janardhan Prasad Yadav Vs. State of U.P. & Ors.
957
Hon'ble Virendra Kumar-II, J.)

1. Heard Sri A.P. Singh, learned
Senior Counsel assisted by Sri Amrendra
Pratap Singh, Advocate for appellant and
learned Standing Counsel for respondents.

2. This intra-Court appeal under
Chapter VIII Rule 5 of Allahabad High
Court Rules, 1952 (hereinafter referred to
as
"Rules,
1952")
has
arisen
from
judgement dated 20.04.2007 passed by
learned
Single
Judge
by
dismissing
appellant's Writ Petition No.484 (S/S) of
1987 filed against punishment order of
dismissal dated 29.09.1986.

3. Learned counsel for appellant
contended that a major punishment of
dismissal has been imposed upon appellant
without
holding
any
oral
enquiry
whatsoever. Appellant, at no point of time,
admitted charge levelled against him.

4. Learned Single Judge, however,
relying on Supreme Court's decision in
L.K. Verma Vs. HMT Ltd. and Another
2006 (2) SCC 269 has observed that when
reply was not given to charge-sheet, it
amounts to admission of allegation levelled
against him and, therefore, punishment is
justified.

5. It is submitted by learned Senior
Counsel that judgment of L.K. Verma
(supra) has wrongly been relied as it does
not lay down the law as stated by learned
Single Judge. Repeatedly, a catena of
decisions are available wherein it has been
held by Apex Court as well as this Court
that a major penalty of dismissal cannot be
imposed
without
holding
enquiry
in
accordance
with
Rules.
Disciplinary
Enquiry has to follow a procedure wherein
Employer has first to prove charge and
thereafter, employee is to be given
opportunity of defence which has not been
done in the case in hand. It has also been
repeatedly held that non-submission of
reply to the charge-sheet does not amount
to admission of charge and in such case
Department has to prove charge. Mere
levelling of allegation upon employee does
not amount to automatic proof of charge.

6. Facts, in brief, giving rise to the
present appeal are that appellant was an
Assistant Agricultural Inspector (Group-III)
of Subordinate Agricultural Services. He
was placed under suspension vide order
dated 07.04.1981 on the allegations of
embezzlement.
A
charge-sheet
dated
22.02.1983 was served upon appellant.
Three charges were imposed which read as
under:-

^^vkjksi la[;k&1 ;g fd vkius vizSy
80 ls okf"kZd HkkSfrd lr;kiu ds le; lR;kiu
ls cpus ds fy;s cgkus ckth dhA vkids xksnke
dks lhydj fn;k x;k vkSj xksnke ij nwljs izHkkjh
dh fu;qfDr dj nh x;hA vkius vius
mRrjkf/kdkjh dks pktZ nsus esa Vky eVksy dhA
var esa etcwj gksdj xksnke dk pktZ eftLV~sV dh
mifLFkfr esa fnukad 24-6-80 dks djk;k x;kA
vkt ds le; xksnke ds vfHkys[k ugha ik;s x;s
rFkk ckn esa muds iquZxBu djus ij pktZ esa nh
x;h d`f"k fu"ks/kksa dh ek=k fuEu vuqlkj de ik;h
x;h

1- moZjd 21]887&80

2- cht 4]719&60

3- [klkjh 957&50

4- d`f"k j{kk nok;sa 299&12

5- MsM LVkd 426&50

&&&&&&&&&&&&&&

;ksx 28]290&60

bl izdkj vkius eq0 28]290&60 iSls
dk nwfoZfu;ksx fd;k vkSj bldks fNikus ds
vfHkizk; ls lacaf/kr vfHkys[kksa dks xk;c dj
fn;kA vki 'kkldh; LVkd dk xcu djus rFkk
lcwr u"V djus ds nks"kh ik;s x;sA
958 INDIAN LAW REPORTS ALLAHABAD SERIES

mDr lanHkZ esa fuEu lk{; fopkjk/khu
gSaA

1- mi d`f"k funs'kd] xksj[kiqj dk
i=kad 10179 fnukad 28-3-80

2- Jh ij'kqjke flag] l0 fo0 v0 d`f"k
dks"kkxat dh fjiksVZA

3- ftyk d`f"k vf/kdkjh nsofj;k dk
i=kad 339 @ fnukad 17-4-80

4- ftykf/kdkjh nsofj;k dk vkns'k la0
599 fnukad 29-4-80

5- ftyk d`f"k vf/kdkjh nsofj;k dk
i=kad 916 fnukad 13&5&80 rFkk 1468 fnukad
13-6-80

6- eftLV~sV }kjk cuk;k x;k bUosUV~h
fnukad 19-5-80

7- vkidk i= fnukad 19-5-80

8- iquZxfBr ystjA^^

"Charge No.1:- That you resorted
to excuses at the time of annual physical
verification since April, 80. Your godown
was sealed and some other incharge was
appointed at godown. You procrastinated in
giving charge to your successor. Finally,
being aggrieved charge of godown was got
transferred on 24.06.80 in presence of the
Magistrate. As of now, records related to
godown were not found and on their
restoration quantities of agricultural stock
which were given in the charge are as
under:-

1. Fertilizer

-
21,887.00

2. Seed

-
4,719.60

3. Khesari

-
957.50

4. Agro Protection medicines

- 299.12

5. Dead stock

-
426.50

-----------
----------

Total 28,290.60

Thus, you misappropriated an
amount of Rs.28,290.60/- and with an
intent to conceal this act, caused the
concerned records to disappear. You are
found
guilty
of
embezzlement
of
government stock and destruction of
evidences.

In respect of the aforesaid,
following
evidences
are
under
consideration:-

1. Letter No.339 dated 17.4.80 of
the
Deputy
Director
Agriculture,
Gorakhpur.

2. Report of Sri Parashuram
Singh,
Assistant
Development
Officer,
Agriculture, Kashganj.

3. Letter No.339/ dt. 17.4.80 of
the District Agriculture Officer.

4. Order No.559 dt. 29.4.80 of the
District Magistrate, Deoria.

5. Letter Nos.916 dt. 13.5.80 and
1468 dt. 13.6.80 of the District Agriculture
Officer,
 Deoria.

6.
Inventory
dated
19.5.80
prepared by the Magistrate.

7. Your letter dated 19.5.80.

8. Reconstructed ledger."

vkjksi la[;k&2 %& ;g fd vkius o"kZ
1979&80 esa d`f"k fuos'kksa dh fcdzh dhA d`f"k
fuos'k fd vkaf'kd ewY; dh izfr iwfrZ gsrq
vuqlwphdk ds lanfHkZr fcy la[;k 357653]
357654 rFkk 357695 fnukad 15-3-80 ds }kjk
d`"kdksa ls d`f"k fuos'kksa ds ewY; dk ew0 1]47]79034 udn ysuk n'kkZ;k x;kA fdUrq blds fo:)
jktdh; dks"k esa ek= 73]310-40 iS0 gh tek fd;s
x;s bl izdkj d`f"k fuos'kksa dh fcdzh dh /kujkf'k
eq0 74]419&94 dk jktdh; dks"k esa u tek djds
xcu dj fy;k x;kA

mDr dh iqfV esa fuEu lk{; fopkjkFkZ
gS%&

1- vki }kjk dkVs x;s vuqnku ds mDr
lanfHkZr fcyA

2- V~stjh pkyku la0 138 ,oa 139
fnukad 29-01-80

3- eftLV~sV }kjk cukbZ x;h bUosUV~h
fnukad 19-5-80 ,oa 24-6-80
3-5 All. Janardhan Prasad Yadav Vs. State of U.P. & Ors.
959

"Charge No.2:- That you sold
agricultural stock in 1979-80. To make up
for partial price, the prices of agricultural
stock to the tune of Rs.1,47,790.34/- is
shown to have been taken in cash from the
farmers against Bill nos.357653, 357654
and 357695 dated 15.3.80 mentioned in
index.
But
against
the
same,
only
Rs.73,310.40/-
was
deposited
in
government fund. In this way, by not
depositing the said amount in government
fund, you have committed embezzlement
of
Rs.74,419.94/-
out
of
sale
of
agricultural stock.

In confirmation of the above, the
following evidences are for consideration:-

1. Aforesaid bills in respect of the
grant issued by you.

2. Treasury Challan nos.138 and
139 dt. 29.01.80.

3. Inventory dated 19.5.80 and
24.6.80 prepared by Magistrate."

vkjksi la[;k 3%& ;g fd vkids }kjk
tkjh fd;s x;s vkjksi la[;k 2 esa mfYyf[kr
vuqnku ds fcy foHkkxh; funsZ'kkuqlkj l0fo0v0
d`f"k rFkk [k.M fodkl vf/kdkjh }kjk fcuk
izekf.kr djk;s Hkqxrku gS izLrqr fd;s x;s ckn esa
tkap djkus ij buesa fn[kk;s x;s vuqnku dh
vokLrfod ,oa lafnX/k ik;k x;k] bl izdkj vki
bu n'kkZ;s x;s [kpkZ vuqnku ds :0 47120-14 dks
'kklu dks {kfr igqapkus ds nks"kh ik;s x;sA

mDr dh iqf"V esa fuEu lk{; fopkjkFkZ
gS%&

1- vki }kjk dkVs x;s vuqnku ds mDr
lanfFkZr fcyA

2- tkap drkZ lgk;d fodkl vf/kdkjh
rFkk vfrfjDr ftyk d`f"k vf/kdkjh dh tkap
fjiksVZA^^

"Charge No.3:- That bills of the
grant issued by you mentioned in charge
no.2 have been presented for payment
without verifying them by the Assistant
Development Officer Agriculture and Block
Development Officer in accordance with
departmental
guidelines,
the
grant
mentioned therein was found fictitious
and doubtful. Thus, you are found guilty of
committing
loss
of
grant
amount
Rs.47,120.14/- to the government.

In confirmation of the above, the
following evidences are for consideration:-

1. The aforementioned bills of the
grant issued by you.

2. Inquiry Reports of the Assistant
Development Officer and Assistant District
Agriculture Officer."

(Emphasis added)
 (English Translation by Court)

7. Disciplinary Authority appointed
an Enquiry Officer who issued notice to
appellant but he did not submit reply to the
charge-sheet. Thereupon Enquiry Officer
straightaway submitted Enquiry Report
dated 15.08.1986 holding charges proved
and then punishment order was passed.
Enquiry Report shows that it has discussed
that opportunity was given to appellant to
submit reply to the charge-sheet but he did
not cooperate in enquiry by submitting
reply to the charge-sheet and, therefore,
Enquiry Officer proceeded by treating
charges self proved. It is argued that this
procedure adopted by Enquiry Officer is
not consistent with law laid down in
number of authorities.

8. Now the sole question up for
consideration is "whether non holding of
oral inquiry before imposing major penalty
of removal would vitiate the entire
proceeding including order of punishment."

9. In Meenglas Tea Estate v. The
workmen., AIR 1963 SC 1719, Court
observed "It is an elementary principle that
a person who is required to answer a charge
must know not only the accusation but also
the testimony by which the accusation is
supported. He must be given a fair chance
960 INDIAN LAW REPORTS ALLAHABAD SERIES
to hear the evidence in support of the
charge and to put such relevant questions
by way to cross-examination as he desires.
Then he must be given a chance to rebut
the evidence led against him. This is the
barest requirement of an enquiry of this
character and this requirement must be
substantially fulfilled before the result of
the enquiry can be accepted.

10. In State of U.P. v. C. S. Sharma,
AIR 1968 SC 158, Court held that omission to
give opportunity to the officer to produce his
witnesses and lead evidence in his defence
vitiates the proceedings. Court also held that in
the enquiry, witnesses have to be examined in
support of the allegations, and opportunity has
to be given to the delinquent to cross-examine
these witnesses and to lead evidence in his
defence.

11. In Punjab National Bank v.
A.I.P.N.B.E. Federation, AIR 1960 SC 160,
(vide para 66), Court held that in such enquiries
evidence must be recorded in the presence of
charge-sheeted employee and he must be given
an opportunity to rebut the said evidence. Same
view was taken in A.C.C. Ltd. v. Their
Workmen, (1963) II LLJ. 396, and in Tata
Oil Mills Co. Ltd. v. Their Workmen, (1963)
II LLJ. 78 (SC).

12. In S.C. Girotra v. United
Commercial Bank 1995 Supp. (3) SCC 212,
Court set aside a dismissal order which was
passed without giving employee an opportunity
of cross-examination.

13. This Court in Subhas Chandra
Sharma v. Managing Director and another,
2000(1) UPLBEC 541, said:-

"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 chargesheet he was given a show-cause 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. 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."

(emphasis added)

14. The above judgment was followed by
another Division Bench in Subhas Chandra
Sharma v. U.P. Co-operative Spinning Mills
and others reported 2001 (2) UPLBEC 1475
where Court held:

"In
cases
where
a
major
punishment proposed to be imposed an oral
enquiry is a must, whether the employee
request, for it or not. For this it is necessary to
issue a notice to the employee concerned
intimating him date, time and place of the
enquiry as held by the Division Bench of this
Court in Subhash Chandra Sharma v.
Managing Director, (2000) 1 UPLBEC 541,
against which SLP has been dismissed by the
Supreme Court on 16-8-2000."

(emphasis added)
3-5 All. Janardhan Prasad Yadav Vs. State of U.P. & Ors.
961

15. In State of Uttar Pradesh v.
Saroj Kumar Sinha reported (2010) 2
SCC 772 Court said :-

"An inquiry officer acting in 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.

When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
in imposition of punishment including
dismissal/removal
from
service."
(emphasis added)

16. Similar view was taken in Roop
Singh Negi v. Punjab National Bank,
(2009) 2 SCC 570 where Court said:

"Indisputably,
a
departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial 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."

(emphasis added)

17. In Rajesh Prasad Mishra v.
Commissioner, Jhansi Division, Jhansi
and others reported 2010 (1) UPLBEC
216 Court observed, as under, after detail
analysis of authorities on the subject:

"Now coming to the question, what is
the effect of non-holding of oral inquiry, I find that,
in a case where the inquiry officer is appointed,
oral inquiry is mandatory. The charges are not
deemed to be proved suo motu merely on account
of levelling them by means of the charge sheet
unless the same are proved by the department
before the inquiry officer and only thereafter it is
the turn of delinquent employee to place his
defence. Holding oral enquiry is mandatory
before imposing a major penalty, as held by Apex
Court in State of U.P. & another Vs. T.P.Lal
Srivastava, 1997 (1) LLJ 831 as well as by a
Division Bench of this Court in Subhash Chandra
Sharma Vs. Managing Director & another, 2000
(1) U.P.L.B.E.C. 541."

18. In another case in Subhash
Chandra Gupta v. State of U.P., 2012 (1)
962 INDIAN LAW REPORTS ALLAHABAD SERIES
UPLBEC 166, a Division Bench of this
Court, after survey of law on this issue,
observed as under:

"It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be done
in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted in accordance with the enquiry
rules meant for that very purposes is
unsustainable in the eye of law. We are
further of the view that the procedure
prescribed under the inquiry rules for
imposing major penalty is mandatory in
nature and unless those procedures are
followed, any out come inferred thereon
will be of no avail unless the charges are
so glaring and unrefutable which does not
require any proof. The view taken by us
find support from the judgement of the Apex
Court in State of U.P. & another Vs. T.P.Lal
Srivastava, 1997 (1) LLJ 831 as well as by
a Division Bench of this Court in Subash
Chandra Sharma Vs. Managing Director &
another, 2000 (1) U.P.L.B.E.C. 541.

A Division Bench decision of this
Court in the case of Salahuddin Ansari Vs.
State of U.P. and others, 2008 (3) ESC
1667 held that non holding of oral inquiry
is a serious flaw which can vitiate the
order of disciplinary proceeding including
the order of punishment has observed as
under:-

" 10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11. A Division Bench of this
Court in Subash Chandra Sharma Vs.
Managing Director & another, 2000 (1)
U.P.L.B.E.C. 541, considering the question
as to whether holding of an oral inquiry is
necessary or not, held that if no oral
inquiry is held, it amounts to denial of
principles
of
natural
justice
to
the
delinquent employee. The aforesaid view
was reiterated in Subash Chandra Sharma
Vs. U.P.Cooperative Spinning Mills &
others, 2001 (2) U.P.L.B.E.C. 1475 and
Laturi
Singh
Vs
U.P.Public
Service
Tribunal & others, Writ Petition No. 12939
of 2001, decided on 06.05.2005."

(emphasis added)

19. Even if employee refuses to
participate in the enquiry, employer cannot
straightaway dismiss him, but he must hold
an ex-parte enquiry where evidence must
be led as held in Imperial Tobacco Co.
Ltd. v. Its Workmen, AIR 1962 SC 1348,
Uma Shankar v. Registrar, 1992 (65)
FLR 674 (All).

20. A Division Bench of this Court in
Mahesh Narain Gupta v. State of U.P.
and others, (2011) 2 ILR 570 had also
occasion to deal with the same issue. It has
held:

"At this stage, we are to observe that
in the disciplinary proceedings against a
delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which
can certainly be proved only by collecting
some oral evidence or documentary
evidence, in presence and notice charged
employee. Even if the department is to rely
its own record/document which are
already available, then also the enquiry
officer by looking into them and by
assigning his own reason after analysis,
will have to record a finding that hose
documents are sufficient enough to prove
the charges.

In no case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved. This
3-5 All. Janardhan Prasad Yadav Vs. State of U.P. & Ors.
963
will be erroneous. It has been repeatedly
said that disciplinary authority has a right
to proceed against delinquent employee in
exparte manner but some evidence will
have to be collected and justification to
sustain the charges will have to be stated in
detail. The approach of the enquiry officer
of automatic prove of charges on account
of
non
filing
of
reply
is
clearly
misconceived and erroneous. This is
against the principle of natural justice, fair
play, fair hearing and, thus, enquiry officer
has to be cautioned in this respect."

 (emphasis added)

21. Recently, entire law on the subject
has been reviewed and reiterated in
Chamoli District Co-operative Bank Ltd.
Vs. Raghunath Singh Rana and others,
AIR 2016 SC 2510 and Court has culled
out certain principles as under:

"i)
The
enquiries
must
be
conducted bona fide and care must be taken
to see that the enquiries do not become
empty formalities.

ii) If an officer is a witness to any
of the incidents which is the subject matter
of the enquiry or if the enquiry was
initiated on a report of an officer, then in
all fairness he should not be the Enquiry
Officer. If the said position becomes known
after the appointment of the Enquiry
Officer, during the enquiry, steps should be
taken to see that the task of holding an
enquiry is assigned to some other officer.

(iii)
In
an
enquiry,
the
employer/department should take steps
first
to
lead
evidence
against
the
workman/delinquent charged and give an
opportunity to him to cross-examine the
witnesses of the employer. Only thereafter,
the workman/delinquent be asked whether
he wants to lead any evidence and asked
to give any explanation about the evidence
led against him.

(iv) On receipt of the enquiry
report, before proceeding further, it is
incumbent
on
the
part
of
the
disciplinary/punishing authority to supply a
copy of the enquiry report and all
connected materials relied on by the
enquiry officer to enable him to offer his
views, if any."

 (emphasis added)

22. I may hasten to add that the above
mentioned law is subject to certain
exception. When the facts are admitted or
no real prejudice has been caused to
employee or no other conclusion is
possible, in such a situation, the order shall
not be vitiated. Reference may be made to
some of such decisions of Supreme Court
in K.L.Tripathi v. State Bank of India
reported AIR 1984 SC 273 ; State Bank
of Patiala v. S.K. Sharma, AIR 1996 SC
1669; and, Biecco Lawrie Ltd. v. West
Bengal reported (2009) 10 SCC 32.

23. Learned Standing Counsel while
not disputing that no oral enquiry was
conducted by fixing any date, time or place,
submitted that reliance placed by learned
Single Judge on the judgement in L.K.
Verma (supra) is correct and no inference
is required.

24. We have gone through aforesaid
judgement. Therein L.K. Verma was
employed as a Safety Officer in HMT
Limited. He was placed under suspension
whereagainst he preferred an appeal before
Labour Commissioner in terms of Rule 14
of U.P. Factories (Safety Officers) Rules,
1984 (in short "Rules, 1984"). Appeal was
not decided. Hence, he filed writ petition
which was disposed of directing Labour
964 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner to decide appeal. When the
matter was pending before Commissioner,
departmental enquiry was completed. A
show-cause notice was issued to L.K.
Verma
on
08.01.1998
as
to
why
punishment of dismissal be not awarded.
Thereafter, Labour Commissioner issued
notice to HMT Limited to appear on
02.04.1998. Employer sought adjournment
on the ground that officers were busy in
closing of financial year. Adjournment was
refused by Labour Commissioner and he
fixed 09.04.1998 for hearing of the parties
which was a holiday. Memo of Appeal was
also not supplied to Employer when this
matter
was
pending
before
Labour
Commissioner. Employer passed an order
dated 21.02.1998 dismissing L.K. Verma
from service. Later, Labour Commissioner
vide order dated 12.04.1998 allowed appeal
preferred by L.K. Verma against suspension
order dated 20.05.1996. Aggrieved by order
of
Labour
Commissioner
passed
on
12.04.1998, Employer i.e. HMT Limited
filed writ petition before Uttranchal High
Court which was allowed and, hence,
matter
came
before
Supreme
Court.
Supreme Court found that L.K. Verma was
issued a charge-sheet on 20.05.1996
containing three charges. In departmental
proceedings, he did not deny or dispute that
he had used indecent language and also
abused the officer. The findings of Enquiry
Officer and punishment was challenged by
L.K. Verma on the ground of malice which
was negative by Supreme Court observing
that out of three charges only charge-2 was
found proved and L.K. Verma was
exonerated in charges-1 and 3 which repel
the contention of malice otherwise all the
charges could have been held proved.
Furthermore, when a charge is proved,
question of exonerating employee on the
ground of purported malice on the part of
Management does not arise.

25. We do not find from aforesaid
judgement that Court laid down as
precedent that if no reply is given to
charge-sheet, charges shall stand proved.
On the contrary para-16 of judgement
shows that L.K. Verma was found to
have accepted that he made utterances
which admittedly lack civility and he
also threatened a superior officer. He
sought to explain it that he was in
tension but Court held that he could have
at least tendered an apology but he did
not do so. Court also held that witnesses
were examined for proving charge
before Enquiry Officer. Enquiry Officer
recorded
conclusion
that
both
Management and witnesses corroborated
each other's statements and though
witnesses
were
cross-examined
thoroughly, no contradiction was found
in their statements in regard to said
charge. This clearly shows that aforesaid
judgement has been misread and does
not state or lay down any law as stated
in the impugned judgement of learned
Single Judge. Therefore, we have no
hesitation in holding that judgement of
L.K. Verma (supra) is misread and has
no application to the facts of the case
and does not help respondents in any
manner.

26. In view thereof, we allow this
appeal.
Impugned
judgement
dated
20.04.2007 passed by learned Single
Judge in Writ Petition No.484 (S/S) of
1987 as well as punishment order dated
29.09.1986 are hereby set aside. Writ
petition stands allowed. Appellant shall
be entitled for all consequential benefits.
However, this order shall not preclude
respondents from proceeding afresh in
accordance with law from the stage after
service of charge-sheet.
----------
3-5 All. Smt. Santoshi Vs. State of U.P. & Ors.
965
(2020)03-05ILR A965
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 834 of 2020

Smt. Santoshi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Agnivesh, Sri Jadu Nandan Yadav, Sri
Arimardan Yadav

Counsel for the Respondents:
C.S.C.

A. Civil law- UP Recruitment of Dependants of
Government Servant Dying in Harness Rules,
1974
-
Rule
5(1)
-Compassionate
Appointment -appointment of dependent of
the deceased employee cannot be interfered
with solely on the ground that she contracted
remarriage which is not restricted under the
aforesaid Rules - subject to the condition that
she has to maintain the dependants of the
deceased employee even after re- marriage

B. Constitution of India - Article 21 -Right to
remarry - no one can force a person to give up
his/her fundamental right to remarry only
because
she
obtained
compassionate
appointment.

Writ Petition disposed off. .(E-10)

List of cases cited:

1. Smt. Subhwanti Devi Vs. Siksha Adhikshak, Basic
Siksha, Nagar Chetra, Allahabad &ors 1988 UPLBEC 80

2. Municipal Employees' Union Vs. Additional Commissioner
(Water) DWS & SDU & anr. 1996 (73) LR 963

3. Anikta Srivastava Vs St. of U.P. & ors, Civil Misc.
Writ Petition No. 19016 of 2013

4. Premlata Acharya Vs. Suman Acharya & ors,
Special Leave to Appeal (C) No. 16315 of 2017

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Agnivesh holding brief of Sri
Arimardan Yadav, learned counsel for the
petitioner and Sri Shyam Sundar, learned
standing counsel for the State-respondents.

2. This writ petition has been filed
praying for the following relief:

"(i) Issue a writ, order or direction in
the nature of mandamus directing the
respondents to permit the petitioner for
remarriage without effecting the services of the
petitioner."

3. Briefly stated facts of the present
case are that the husband of the petitioner,
namely Dharmendra Kumar was a class-IV
employee in the respondent No.3 -
Institution. During tenure of his service, he
died
on
06.03.2011.
Therefore,
the
petitioner applied for her appointment on
compassionate
ground
and
she
was
appointed as a class-IV employee by
appointment letter dated 23.12.2011, under
the
Uttar
Pradesh
Recruitment
of
Dependants of Government Servant Dying
in Harness Rules, 1974. Now the petitioner
wants to remarry with her devar (real
younger brother of her husband), namely
Sri Ranjeet Kumar. Averments in this
regard has been made in paragraph-8 of the
writ petition. In paragraph-9 of the writ
petition, it is stated that the respondents are
not permitting the petitioner to remarry
with her devar Ranjeet Kumar.