# Lalit Prasad Shukla v. State of U.P. Thru' Principal Secy. & others

- **Citation:** (2012) 1 ILRA 220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-08
- **Case number:** Civil Misc. Writ Petition No. 23256 of 2008
- **Bench:** P.K.Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalit-prasad-shukla-v-state-of-u-p-thru-principal-secy-others-42104
- **Pages:** 6

## Headnote

C.S.C

U.P.
Govt.
Servants
(Discipline
and
Appeal)
Rules
1999-Disciplinary
proceeding-without giving the copy of
enquiry
report
without
following
procedure given in Rule-Held-complete
goby of Natural Justice-not sustainableorder impugned quashed with liberty to
initiate conduct disciplinary proceeding
in accordance with Rules.

Held: Para 12 and 13

A perusal of the enquiry report would
indicate that the Enquiry Officer has
relied only on the documentary evidence.
No witness was called to prove those
documents neither any oral evidence
was adduced by the Department as
stated above. Rule 7 of the 1999 Rules
gives
the
detailed
procedure
for
imposing major penalties.

Once an Enquiry Officer was appointed
and full fledged enquiry was held it was
obligatory on the part of the disciplinary
authority to follow procedure laid down
under Rule 7 of 1999 Rules. As initially
the enquiry was initiated for imposing
1 All] Lalit Prasad Shukla V. State of U.P. Thru' Principal Secy. & others

221
minor penalty but later on a regular
enquiry
was
held
and
as
such
irrespective of the punishment imposed
on the petitioner, the procedure laid
down for regular enquiry for major
punishment should have been followed.
Case law discussed:
1991 Supp. (1) SCC 504; (2010) 10 SCC 539;
MANU UP/0782/2011; 2008 (1) AWC 623 (in
para 8); 2000 (1) UPLBEC 541; AIR 1998 SC
853; JT 1990 (4) SC 70; J.T. 2000 (9) SC 457

## Text

220 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

6. We are unable to accept the
contention raised by learned counsel for
the respondents.

7. From the facts stated above, it is
clear that initially a proposal was sent by
the petitioner to the Board of Revenue
and after advice of the Board of Revenue
another exemplar was applied and a
revised award was sent as per direction of
the Board of Revenue. It is also important
to mention here that the said award was
challenged subsequently by the claimants
before the District Judge and the District
Judge in reference under section 18 of the
Land Acquisition Act, enhanced the
award to Rs.5/- per square yard which
was initially submitted by the petitioner.
Thus, in fact there was no loss to the
government. It is only hypothetical
observation of the enquiry officer that if
the proposal of the petitioner was
accepted by the Board of Revenue there
would be a loss to the government. While,
in fact the award as proposed by the
petitioner was approved by the District
Judge u/s. 18 of the Land Acquisition Act.
Therefore, the whole enquiry and the
order of the disciplinary authority was
based
merely
on
probability
and
imagination and the deduction of 10%
pension was illegal and not sustainable in
law.

8. In view of the above discussions,
the writ petition succeeds and is allowed.
The
orders
dated
25.09.1986
and
30.6.1992 passed by respondent no.1 are
hereby quashed. The respondents are
directed not to deduct 10% of the pension.
The respondents are further directed to
refund 10% deducted amount of pension
to the petitioner along with simple interest
at the rate of 8% per annum.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2012

BEFORE
THE HON'BLE P.K.SINGH BAGHEL,J.

Civil Misc. Writ Petition No. 23256 of 2008

Lalit Prasad Shukla

 ...Petitioner
Versus
State of U.P. Thru' Principal Secy. &
others

 ...Respondents

Counsel for the Petitioner:
Sri Chandan Sharma
Sri Shrikrishna Shukla
Sri U.N. Sharma
Sri Ram Mohan Shukla

Counsel for the Respondents:
C.S.C

U.P.
Govt.
Servants
(Discipline
and
Appeal)
Rules
1999-Disciplinary
proceeding-without giving the copy of
enquiry
report
without
following
procedure given in Rule-Held-complete
goby of Natural Justice-not sustainableorder impugned quashed with liberty to
initiate conduct disciplinary proceeding
in accordance with Rules.

Held: Para 12 and 13

A perusal of the enquiry report would
indicate that the Enquiry Officer has
relied only on the documentary evidence.
No witness was called to prove those
documents neither any oral evidence
was adduced by the Department as
stated above. Rule 7 of the 1999 Rules
gives
the
detailed
procedure
for
imposing major penalties.

Once an Enquiry Officer was appointed
and full fledged enquiry was held it was
obligatory on the part of the disciplinary
authority to follow procedure laid down
under Rule 7 of 1999 Rules. As initially
the enquiry was initiated for imposing
1 All] Lalit Prasad Shukla V. State of U.P. Thru' Principal Secy. & others

221
minor penalty but later on a regular
enquiry
was
held
and
as
such
irrespective of the punishment imposed
on the petitioner, the procedure laid
down for regular enquiry for major
punishment should have been followed.
Case law discussed:
1991 Supp. (1) SCC 504; (2010) 10 SCC 539;
MANU UP/0782/2011; 2008 (1) AWC 623 (in
para 8); 2000 (1) UPLBEC 541; AIR 1998 SC
853; JT 1990 (4) SC 70; J.T. 2000 (9) SC 457

(Delivered by Hon'ble P.K.S.Baghel,J. )

1. The petitioner is a Junior Engineer.
He has filed this writ petition aggrieved by
the order of the Director/Chief Engineer,
Rural Engineering Services, dated 8.1.2008
whereby punishment of the recovery of an
amount of Rs.56,526.87 , withholding of
two annual increments and making two
censured entries have been made. His
appeal has also been rejected by the
Principal
Secretary.
Both
the
orders
impugned have been annexed as Annexure1 and 2 respectively.

2. The short facts leading to the
present writ petition are the petitioner was
initially appointed as Junior Engineer in
Rural Engineering Services, in November
1987. While he was posted as Junior
Engineer at Siddartha Nagar in the year
2003 he was subjected to disciplinary
proceedings . The disciplinary proceedings
were initiated in terms of the U.P.
Government
Servants
(Discipline
and
Appeal) Rules, 1999 (hereinafter referred to
as 1999 Rules). A charge sheet was issued
to him on 14.7.2004 (A copy of which is
annexed as Annexure-3 to the writ petitin)
wherein one of the charge was that on
10.12.2002 the petitioner deposited 80
drums Bitumen on the main road adjoining
the Central Stores, Siddartha Nagar without
any information to the Store Junior
Engineer. Out of 80 drums of Bitumen 25
drums were stolen on 17.1.2003. Thus the
petitioner was charged for the negligence.
The petitioner submitted his reply to the
charge sheet where he denied the charges
made against him. The Enquiry Officer
found him guilty and a show cause notice
was issued to him on 3rd September, 2007 (
a copy of which is annexed as Annexure-6
to the writ petition). The petitioner
submitted his reply to the show cause
notice. However, the Disciplinary Authority
was not satisfied and the punishment
mentioned herein above was imposed on
him.

3. Aggrieved by the said order the
petitioner had filed a writ petition in this
Court. However, the writ petition was
dismissed by means of order dated 5.2.2008
on the ground of alternative remedy.
Thereafter the petitioner filed an Appeal
before the State Government in terms of the
U.P. Government Servants (Discipline and
Appeal) Rules,1999. (A copy of ground of
Appeal is annexed as Annexure-10 to the
writ petition). The said Appeal was also
rejected by the State Government.

4. I have heard learned counsel for the
petitioner Sri U.N.Sharma assisted by Sri
Shrikrishana Shukla and learned Standing
Counsel.

5. Learned counsel for the petitioner
Sri Sharma has submitted that the entire
disciplinary proceeding is vitiated on the
ground of violation of principles of natural
justice as the enquiry report on which the
disciplinary authority has placed reliance
was obtained behind the back of the
petitioner ex-parte without any notice or
knowledge of the petitioner. He has further
pointed out that in the earlier enquiries
petitioner was not found guilty. However,
the Director/Chief Engineer by means of
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

letter dated 10.5.2007 had asked to ignore
the earlier report and a fresh report was
called for. Sri Sharma further submitted that
no date was fixed for the enquiry and the
entire enquiry has been conducted without
any intimation of the date and place of the
enquiry. Sri Sharma has relied on the
judgment of the Apex Court passed in
Kulwinder Singh Gill v. State of Punjab
1991 Supp. (1) SCC 504; Jagdamba
Prasad Shukla v. State of U.P and others
(2000) 7 SCC 90 ; Molhd. Younus Khan
v. State of U.P. and others (2010) 10 SCC
539 and a Judgement of learned Single
Judge passed by this Court in Ashok
Kumar
Sagar
v.
High
Court
of
Judiciature
at
Allahabad
(MANU?UP/0782/2011)
decided
on
20.4.2011.

6. Learned Standing Counsel has
submitted that the petitioner has been given
full opportunity as a charge sheet was
issued to him and under Rule 9 of the U.P.
Government
Servants
(Discipline
and
Appeal)
Rules,1999
the
Disciplinary
Authority has power to order a fresh
enquiry. In the present case the Disciplinary
Authority has exercised his power under
Rule 9 and he asked for a fresh enquiry
report.

7. I have considered the rival
submissions of the learned counsel for the
petitioner and learned standing counsel. The
order of the Disciplinary Authority is
cryptic and no reason has been given in the
order only conclusion has been mentioned.
Aggrieved by the order of the disciplinary
authority the petitioner filed an appeal
wherein he has specifically raised the issue
that the enquiry was ex-parte, unilaterally
and without giving any opportunity. The
ground no.8, 9 and 12 of his Ground of
Appeal,so far material for the present
controversy is set out below:-

"That the said enquiry report is wholly
illegal, arbitrary and in violation of
principle of natural justice in so far as the
enquiry report has been prepared ex-parte
unilaterally without giving the appellant
any opportunity of appearing in the enquiry
proceedings and without issuing any charge
sheet to the appellant and without calling
upon the appellant to submit his written
statement to the charge sheet or to express
his desire for cross examining the witnesses
or to produce evidence in defence. The
appellant was also not given any copy of
enquiry report dated 11.3.2007 and the
order dated 22.3.2007 passed by the
Executive Engineer Siddhartha Nagar or
the final report submitted by the police in
the matter or the letter of the Executive
Engineer dated 20.6.2007 and the document
accompanying with the said letter which
have been relied upon by the Inquiry Officer
and thus the enquiry has been conducted in
violation of Rule 7 of the Rules.

That in view of the matter the
appellant has not been intimated any date
time or place of enquiry and even the
appointment of the Inquiry Officer have not
been intimated or informed to the appellant
and the enquiry proceedings have been
conducted unilaterally ex-parte and behind
the back of the appellant.

That it is noteworthy that the appellant
has not been given any notice or
opportunity of hearing of any other enquiry
and all the reports referred to in the enquiry
report are unilateral ex-parte and prepared
behind the back of the appellant without
participation of the appellant at any stage."
1 All] Lalit Prasad Shukla V. State of U.P. Thru' Principal Secy. & others

223

8. A perusal of the order of the State
Government Annexure-1 to the writ petition
would go to show that the appellate
authority had not adverted to the issue
raised by the petitioner. In the writ petition
also the petitioner has stated in paragraph
16 and 17 that the enquiry was ex-parte and
behind the back of the petitioner without his
knowledge. The reply to the said paragraphs
have been given in the counter affidavit 11
clubbing paragraph 15,16, 17 and 18
together vague and evasive reply has been
given. In paragraph 28 and 29 of the writ
petition petitioner has again reiterated this
fact and in reply to it in the counter affidavit
in paragraph 14 again evasive reply has
been given. From the pleadings of the case
and perusal of the grounds of appeal it is
manifestly clear that the petitioner was not
given proper opportunity in the enquiry.

9. The order of the Disciplinary
Authority, as stated above, it totally cryptic
and non speaking. Appellate Authority has
also not considered the various grounds
taken by the petitioner in his appeal. The
Appellate Authority has only affirmed the
order of the Disciplinary Authority without
adverting the issues raised by the petitioner.

10. Apart from the aforesaid fact,
from perusal of the enquiry report, the order
of the Disciplinary Authority and the
Appellate Authority it is manifestly clear
that no oral evidence was adduced by the
Department in the disciplinary proceedings
and the Inquiry Officer had only referred
some letters and communications of the
officials as an evidence to hold the
petitioner guilty. The Department has not
examined any witness in support of the
charge. It was the duty of the Department to
prove the charges. From perusal of the
aforesaid orders it also transpires that no
date and place has been fixed by the Inquiry
officer. This Court has held that in the case
of ex-parte enquiry it is the duty of the
Department/Employer to prove charges
mentioned in the charge sheet.

11. In the present case the respondents
have issued a show cause notice dated
14.7.2004 purported to be under Rule 10.
The said Rule deals with the procedure for
imposing minor penalties. However, later
on, on 14.7.2007 and Enquiry Officer was
appointed and a regular enquiry has been
conducted. This fact is also evident from a
show cause notice dated 3rd September,
2007 (Annexure-6 to the writ petitin)
wherein enquiry report has been sent to the
petitioner and his reply was sought within
14 days. The show cause notice has been
issued in terms of Rule 9 Sub. clause 4.
However, after considering the reply the
disciplinary
authority
inflicted
minor
punishment in terms of the Rule 3 of the
1999 Rules.

12. A perusal of the enquiry report
would indicate that the Enquiry Officer has
relied only on the documentary evidence.
No witness was called to prove those
documents neither any oral evidence was
adduced by the Department as stated above.
Rule 7 of the 1999 Rules gives the detailed
procedure for imposing major penalties.

13. Once an Enquiry Officer was
appointed and full fledged enquiry was held
it was obligatory on the part of the
disciplinary authority to follow procedure
laid down under Rule 7 of 1999 Rules. As
initially the enquiry was initiated for
imposing minor penalty but later on a
regular enquiry was held and as such
irrespective of the punishment imposed on
the petitioner, the procedure laid down for
regular enquiry for major punishment
should have been followed.
224 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

14. A Division bench of this Court in
case of Surya Bhan Singh v. U.P.Lok
Sewa Adhikaran and others, 2008 (1)
AWC 623 (in para 8) has held as follows:-

"Even
in
a
case
where
only
documentary evidence is to be relied upon
for proving the charges, it cannot be said
that such documents need not be proved at
all, may be that rigour of proof, as is
required in the criminal trial are not needed
but some sort of proof is necessary to attach
authenticity to such document. While doing
so, it cannot be lost sight of that the
delinquent has every right to appear before
the Enquiry Officer and to bring to his
notice that the documentary evidence which
is being made the basis of the charges
cannot be relied upon for very many
reasons ; for example, the said record/
documentary evidence is not admissible in
law or for any other reason, such
documentary evidence could not have been
looked into and if such a documentary
evidence is shown to the petitioner, he may
adduce some evidence to rebut such
documentary evidence and prove that the
documentary evidence adduced by the
department is not worthy of any reliance.
Merely because the department was of the
view that the charges are based on
documentary evidence and, therefore, there
was no necessity to either prove those
documents/record
or
to
give
any
opportunity to the petitioner in the enquiry
proceedings cannot be said to be correct
approach, according to law."

15. The same law has been laid down
in
Subhash
Chandra
Sharma
v.
Managing Director and another reported
2000(1) UPLBEC 541. The relevant part of
the judgment is quoted hereunder below :-

"The 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 crossexamine these witnesses and to lead
evidence in his defence. In Punjab National
Bank v. AIPNBE Federation. AIR 1960 SC
160 (vide para 66), the Supreme Court held
that in such enquiries evidence must be
recorded in the presence of the chargesheeted employee and he must be given an
opportunity to rebut the said evidence. The
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. Even if the employee refuses to
participate in the enquiry, the employer
cannot straightaway dismiss him, but he
must hold an ex parte enquiry where
evidence must be led vide Imperial Tobacco
Co, Ltd. v. its workmen. AIR 1962 SC 1348,
Uma Shanker v. Registrar. 1992 (651 FLR
674 All."

16. The Supreme Court in the case of
Ministry of Finance and another v.
S.B.Ramesh reported in AIR 1998 SC
853 has emphasized that in case of
disciplinary proceedings if Enquiry Officer
relies on the documents then those
documents should be proved in accordance
with law and any inference drawn from the
documents which were not proved in
accordance with law would be illegal and
opposed to law.

17. The Apex Court in Kulwant
Singh Gill v. State of Punjab reported in
JT 1990 (4) SC 70 has held :-

"Obviously, the disciplinary authority
felt that the enquiry into minor penalty is
not necessary and adhering to the
principles of natural justice issued the show
cause notice and on receipt of the reply
1 All] Dr. Sunil Vikram Singh V. State of U.P.and others

225
from the delinquent officer passed the
impugned order imposing penalty thinking
it to be a minor penalty. If it is considered,
as stated earlier, that it would be only a
minor penalty, the procedure followed
certainly meets the test of the principles of
natural justice and it would be a sufficient
compliance with the procedure. In view of
the finding that the impugned order is a
major penalty certainly then a regular
enquiry has got to be conducted and so the
impugned order is clearly illegal. The Trial
Court rightly granted the decree. The
judgment and the decree of the High Court
is vitiated by manifest illegality. At this
distance of time it is not expedient to direct
an enquiry under rules 8 and 9 of the Rules.
The appeal is accordingly allowed and the
judgment and decree of the High Court is
set aside and that of the trial court is
restored but in the circumstances without
costs."

18. The same view has been taken by
the Supreme Court in the case of
Jagdamba Prasad Shukla v. State of U.P.
and others reported in J.T. 2000 (9) SC
457.

19. In the background of the aforesaid
facts I am of the considered view that the
disciplinary proceedings has vitiated, as the
procedure laid down in 1999 Rules has not
been followed and the petitioner has not
been given appropriate opportunity of
hearing.

20.

Orders
dated
17.4.2008
(Annexure-1 to the writ petition) passed by
the respondent no.1 and the order dated
8.1.2008 (Annexure-2 to the writ petition)
passed by the respondent no.2 are hereby
set aside.

21. Respondent no.2 is directed to
hold a fresh enquiry after giving fullest
opportunity of hearing to the petitioner in
the light of procedure laid down under the
U.P. Government Servants (Discipline and
Appeal) Rules, 1999.

22. With the above observations and
order, the writ petition is finally disposed of
.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 06.01.2012

BEFORE
THE HON'BLE S.K.SINGH,J
THE HON'BLE PANKAJ NAQVI,J

Civil Misc. Writ Petition No. 23342 of 2009

Dr. Sunil Vikram Singh
....Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vimlendu Tripathi
Sri Intekhab Alam Khan
Sri Seemant Singh

Counsel for the Respondents:
Sri Anil Tiwari
C.S.C.

Constitution of India , Article 226-Carrier
Advance Scheme under G.O. 13.03.2001as
well
as
statute
No.
1710
of
Purvanchal University-provides to count
the previous working on substantial
capacity
in
another
University
or
recognized Degree College on PostGraduate
College
duly
affiliated
to
University-Petitioner while working on
substantive capacity and confirmed as
post of Lecturer in University situated in
State of Bihar from 15.11.1996 to
09.05.2000-to be counted for purpose of
higher pay scale and other purpose-as
nothing whisper regarding word 'outside'