# Lallan Mishra v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 467
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-01-04
- **Case number:** Writ A No. 62994 of 2014
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lallan-mishra-v-state-of-u-p-ors-46352
- **Pages:** 5

## Headnote

A. Service Law - Collection Amin -
Dismissal from service - Enquiry - Right
of cross examination - Allegation of
recovery being found deficient and much
below the target - No oral enquiry - No
statement of the author of report -
Validity challenged - Held, the inquiry
cannot be said to have been conducted in
a fair and impartial manner inasmuch as
neither any oral inquiry was conducted
nor even the report relied upon against
the
petitioner
was
proved
by
the
468 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of its authors. This apparently
was done as the inquiry officer in that
situation would have been required to
record his own statement for proving his
report. No right of cross-examination was
otherwise given to petitioner - Inquiry
itself was not conducted in a fair and
impartial manner since the bias of inquiry
officer was clearly established. (Para 12)
B. Service jurisprudence Law - No one can
be Judge in its own matter -Fair and
impartial
inquiry
-
Essential
-
Complainant
himself
became
inquiry
officer and, therefore, acted as a judge in
his own cause - Held, status of an inquiry
officer is that of a quasi judicial authority
and that he is supposed to be an
independent
adjudicator.
The
inquiry
officer cannot act as a prosecutor while
being a judge himself. (Para 11 and 13)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

10 All. Lallan Mishra Vs. State of U.P. & Ors.
467
the long procedure of appointment through
the Public Service Commission by directly
issuing advertisement inviting applications
from eligible candidates for the post and on
the recommendation of the selection
committee, candidates were selected. The
appointment
letter
were
issued
after
obtaining approval from Hon'ble Governor.
It cannot be said in the circumstances that
the rules applicable for appointment were
not followed. The rules, as were made
applicable for appointment on ad-hoc basis
was duly complied and followed and
petitioner,
admittedly,
came
to
be
appointed against substantive vacancy,
thereafter,
his
service
came
to
be
regularized under Rule, 1979. In the
circumstances, it cannot be said that
appointment of the petitioner was against
the
service
rules
prescribed
by
Government. Under the pension rules a
temporary government servant appointed
against a substantive post is entitled to
pension. The nomenclature ''ad-hoc' would
have no bearing to non-suit the petitioner
towards
pension.
The
nature
of
appointment is temporary appointment
against a substantive post after following
the procedure laid down to appoint such adhoc/temporary Medical Officer. In the
opinion of the Court, the petitioner's service
would
fall
within
the
expression
"qualifying service" as petitioner came to
be appointed against substantive post by
following procedure prescribed by the State
Government. It is not in dispute that
appointing authority of the petitioner is the
Hon'ble Governor.

10. In the result, the writ petition is
allowed.
Impugned
order
dated
04.01.2018, is hereby set aside and
quashed. It is held that the service rendered
by petitioner on ad-hoc basis would count
towards "qualifying service", consequently,
petitioner is held entitled for pension. The
first respondent is directed to compute
pension and other post retiral dues
admissible to the petitioner by adding the
period of ad-hoc service rendered by him.
Petitioner shall be entitled to pension on
month to month basis with effect from the
date of his superannuation. The arrears of
pension would be computed and released
within the period of three months, along
with simple interest at the rate of 6% per
annum from the date of retirement till
actual payment.

11. No Cost.
----------
(2021)10ILR A467
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 62994 of 2014

Lallan Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.B. Tripathi

Counsel for the Respondents:
C.S.C., S.C.

A. Service Law - Collection Amin -
Dismissal from service - Enquiry - Right
of cross examination - Allegation of
recovery being found deficient and much
below the target - No oral enquiry - No
statement of the author of report -
Validity challenged - Held, the inquiry
cannot be said to have been conducted in
a fair and impartial manner inasmuch as
neither any oral inquiry was conducted
nor even the report relied upon against
the
petitioner
was
proved
by
the
468 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of its authors. This apparently
was done as the inquiry officer in that
situation would have been required to
record his own statement for proving his
report. No right of cross-examination was
otherwise given to petitioner - Inquiry
itself was not conducted in a fair and
impartial manner since the bias of inquiry
officer was clearly established. (Para 12)
B. Service jurisprudence Law - No one can
be Judge in its own matter -Fair and
impartial
inquiry
-
Essential
-
Complainant
himself
became
inquiry
officer and, therefore, acted as a judge in
his own cause - Held, status of an inquiry
officer is that of a quasi judicial authority
and that he is supposed to be an
independent
adjudicator.
The
inquiry
officer cannot act as a prosecutor while
being a judge himself. (Para 11 and 13)
Writ petition allowed. (E-1)
Cases relied on :-
1. St. of U.P. & ors. Vs Saroj Kumar Sinha;
(2010) 2 SCC 772

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Petitioner
was
substantively
appointed as Collection Amin on 4.3.1977
and his services were confirmed w.e.f.
4.3.1979 vide order dated 4.6.1990. While
in service, a report was submitted by the
Naib Tehsildar against the petitioner that
his recovery during the relevant period was
deficient and was much below the target
allotted to him and that he had used
indecent language in a review meeting held
by the Sub Divisional Magistrate, Ballia.
The report also indicated that the petitioner
was not touring in his area of recovery nor
he
furnished
tour
program,
which
amounted to an act of misconduct on part
of the petitioner. The Naib Tehsildar
accordingly submitted this report to the
Tehsildar who recommended
for his
suspension on 14.6.2010. On the basis of
such
recommendation,
an
order
of
suspension
was
passed
against
the
petitioner by the Sub Divisional Magistrate,
Ballia on 17.6.2010. Ultimately a chargesheet came to be served upon the petitioner
on 30.7.2010 by Sub Divisional Magistrate,
Ballia containing 8 charges. A Perusal of
the charge-sheet would go to show that
basis
of
the
charge
and
proposed
disciplinary action is the report of the Naib
Tehsildar
dated
12.6.2010
and
the
endorsement of Tehsildar dated 14.6.2010.
The first charge against petitioner was that
his
recovery
between
23.11.2009
to
31.5.2010 was below the target allotted to
him. The second charge was regarding non
availability of petitioner in his area over
which the concerned revenue authorities
expressed their displeasure. The third
charge was that the petitioner did not
vacate the house and was using it for
commercial purposes. The fourth charge
related to non submission of explanation
despite a direction issued in that regard.
The fifth charge is with regard to use of
indecent language by the petitioner in a
review meeting. The seventh charge is
similar as per which petitioner refused to
put
a
note
and
thereby
committed
misconduct. The last charge was regarding
petitioner's misbehaviour with defaulters
and exercise of influence for not being
compelled to furnish his tour program.
Charge Nos. 8,7,2 and 1 are based entirely
upon the report of the Naib Tehsildar dated
12.6.2010 as also the recommendation of
Tehsildar, Ballia dated 14.6.2010.

2. A reply to the charge-sheet was
submitted by the petitioner stating that the
disciplinary proceedings are a counter blast
only because he had filed Writ Petition No.
51459 of 2010, before this Court. Many
10 All. Lallan Mishra Vs. State of U.P. & Ors.
469
other grounds were taken in defence by the
petitioner.
All
the
charges
were
nevertheless emphatically denied.

3. It appears that initially one Sri
Munauver Ali, Tehsildar acted as the
inquiry officer. During the pendency of the
proceedings, however, the official who
made
the
endorsement
against
the
petitioner on 14.6.2010 and had also
recommended
petitioner's
suspension
became Tehsildar and proceeded to act as
the inquiry officer in the disciplinary
proceedings. Petitioner claims to have
submitted an objection against it and
requested for change of inquiry officer on
the ground that being the complainant
himself Ashutosh Dubey could not act as
the inquiry officer also. However, no orders
appear to have been passed in the matter
and the inquiry officer proceeded to submit
his report on 28.3.2011. It is urged that
neither any opportunity of cross-examining
the witnesses was

4. Based upon the report of the
inquiry officer, a show cause notice was
issued to the petitioner calling upon him to
submit reply as to why he be not dismissed
from service. A reply was submitted raising
various legal and factual objections to the
enquiry report. The disciplinary authority
however has reverted the petitioner to
initial scale of pay admissible to him vide
order dated 5.5.2011, against which an
appeal and revision have also been rejected.
These orders are challenged in the instant
writ petition.

5. Learned counsel for the petitioner
contends that the inquiry proceedings
lacked fairness inasmuch as the inquiry
officer who was himself the complainant
conducted the inquiry and, therefore, the
first principle of natural justice that a
person should not be the judge of his own
cause,
stands
breached.
The
inquiry
proceedings are also questioned on the
ground that neither any date, time or place
was fixed for conducting the inquiry nor
any oral enquiry was held and the right of
cross-examination was also denied to
petitioner. It is also argued that denial of
subsistence allowance has also vitiated the
inquiry.

6. A counter affidavit has been filed
controverting the averments made in the
writ petition to which a Rejoinder affidavit
is filed reiterating the averments made in
the wri

7. I have heard Sri R.B. Tripathi,
learned counsel for the petitioner, Sri
Sharad
Chandra
Upadhyay,
learned
Standing Counsel for the State and perused
the materials on record.

8. From the facts, as have been
noticed above, it is apparent that the
disciplinary proceedings were initiated
against the petitioner on the basis of the
note submitted by the Naib Tehsildar and
Tehsildar. Recommendation was made by
the Tehsildar for initiating disciplinary
action and placing the petitioner under
suspension. This note of Tehsildar dated
14.6.2010 is on record clearly reveals that
Tehsildar was in agreement with the report
of the Naib Tehsildar dated 12.6.2010 and
had also recommended for placing the
petitioner under suspension. This report
also forms the main basis of disciplinary
action.

9. Records reflect that initially one
Munawwar Ali was the inquiry officer at
the time of issuance of charge-sheet to
petitioner. However, during the inquiry
proceedings,
Tehsildar
who
had
470 INDIAN LAW REPORTS ALLAHABAD SERIES
recommended
disciplinary
action
and
suspension of petitioner himself became the
inquiry officer. Pleadings in paragraphs
Paras- 23 and 24 of the writ petition are
specific according to which the inquiry was
conducted by Ashutosh Dubey who, in his
capacity as Tehsildar, had recommended
petitioner's suspension while endorsing the
report
dated
12.6.2010.
A
specific
averment is also made about petitioner
moving an application for change of
inquiry officer. In the counter affidavit filed
by the State receiving of such application is
disputed
on
the
ground
that
such
application does not exist on record but the
enquriy officer has refused to such
objection in his report which support
petitioner's contention that an objection was
raised by him in this regard.

10. The inquiry officer in his report
has recorded that 26.3.2010 was the date
fixed for holding inquiry and he made
efforts to convince the petitioner about
fairness in the inquiry but the petitioner
insisted in his objection of bias against the
inquiry
officer.
The
inquiry
officer,
therefore, proceeded to examine the records
on his own and submitted his report
holding the petitioner guilty of the charges
levelled against him.

11. From a perusal of the inquiry
report, it is also apparent that neither any
date was fixed for recording oral evidence
of witnesses nor any oral statement appears
to have actually been recorded. There is
also nothing on record to show that any
date was fixed for cross-examining the
witnesses. The inquiry officer for holding
the charges against the petitioner, has relied
upon the report of the Naib Tehsildar as
also his own endorsement dated 14.6.2010.
This clearly shows that the inquiry officer
was himself the complainant and relied
upon his own report for proving the guilt of
the petitioner. Four out of the eight charges
were based essentially upon the report of
the inquiry officer himself. This clearly
reflects that the complainant himself
became the inquiry officer and, therefore,
acted as a judge in his own cause.

12. Even otherwise the inquiry cannot
be said to have been conducted in a fair and
impartial manner inasmuch as neither any
oral inquiry was conducted nor even the
report relied upon against the petitioner
was proved by the statement of its authors.
This apparently was done as the inquiry
officer in that situation would have been
required to record his own statement for
proving his report. No right of crossexamination
was
otherwise
given
to
petitioner. This Court, therefore, finds
substance in the petitioner's contention that
the inquiry itself was not conducted in a
fair and impartial manner since the bias of
inquiry officer was clearly established.

13. Law is settled that the status of an
inquiry officer is that of a quasi judicial
authority and that he is supposed to be an
independent
adjudicator.
The
inquiry
officer cannot act is a prosecutor while
being a judge himself. In State of Uttar
Pradesh and others Vs. Saroj Kumar Sinha,
(2010) 2 SCC 772 the law on the subject
has been summarised in following words:-

28. 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
10 All. Najakat Ali Vs. State of U.P. & Ors.
471
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.

29. Apart from the above by virtue of
Article 311(2) of the Constitution of India the
departmental inquiry had to be conducted in
accordance with rules of natural justice. It is a
basic requirement of rules of natural justice that
an employee be given a reasonable opportunity
of being heard in any proceeding which may
culminate in a punishment being imposed on
the employee.

30. When a department 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 enquiry 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 supplied)

14. It is otherwise on record that in respect
of the house allotted to petitioner a dispute was
raised before the Civil Court and an injunction
infavour of petitioner was operating. His
defence on merits in that regard does not appear
to have been examined in correct perspective.
In such circumstances, this court finds that the
disciplinary inquiry conducted against the
petitioner lacks fairness and objectivity and the
bias of inquiry officer was apparent on record.
In such circumstances, inquiry report as well as
consequential
orders
of
punishment,
as
confirmed in appeal and in revision, are found
to be violative of principles of natural justice
and are otherwise unsustainable for the reasons
recorded above.

15. Consequently, writ petition succeeds
and is allowed. Orders impugned dated
5.5.2011, 1.5.2012 and 15.7.2014 (Annexures-
21,25 and 28 to the writ petition) stands
quashed. Ordinarily this Court would have
remitted the matter for conducting fresh inquiry
from the stage it has gone bad, but this course is
not followed in the facts of the present case
since the petitioner has already attained the age
of superannuation in the year 2011 and a period
of more than 10 years have gone by. He has
been sufficiently punished even without
establishing his guilt. Any direction now for his
participation in the inquiry would amount to
further harassment of petitioner and would
otherwise be impermissible in law.

16. Consequently, a writ of mandamus is
issued to the respondents to correctly fix
petitioner's salary as also his retiral benefits as
per his entitlement and release all monetary
benefits to him within a period of four months
from the date of presentation of a copy of this
order.

17. Costs are made easy.
----------

(2021)10ILR A471
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2021

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ C No. 15420 of 2020
Alongwith other cases

Najakat Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents