# Mahendra @ Motey (In Jail) v. State of U.P. 1060 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 10 ILRA 1059
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-30
- **Case number:** Criminal Appeal No. 3092 of 1985
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-motey-in-jail-v-state-of-u-p-1060-indian-law-reports-allahabad-series-46199
- **Pages:** 8

## Headnote

Criminal Law - Murder - Indian Penal
Code, 1860 - Section 302 - Murder - Proof -
while several persons were gambling on street
accused took his position behind deceased and
several axe blows on deceased, on account of
which
deceased
died
-
doctor
witness
categorically opined that injury nos.1 to 3 could
have been caused by axe & that injury no.4
could have been caused by the blunt side of the
axe - injury nos. 1 to 4 were sufficient to cause
death of the deceased - chemical examination
report also indicated human blood on axe - use
of axe in the commission of the offence stood
proved - manner and description of committing
the offence by the present accused-appellant
proved satisfactorily to the hilt - Conviction,
proper (25, 26, 27)

Allowed. (E-5)

## Text

10 All. Mahendra @ Motey Vs. State of U.P.
1059
misread and misunderstood by the learned
trial court to mean that a conviction can be
recorded on solitary statement of a witness
who has disowned his testimony of
examination-in-chief and has turned hostile
during
the
beginning
of
the
crossexamination. No doubt, where other
reliable
and
trustworthy
evidence
is
available on record, the same can be used
in support thereof.

48. Otherwise also, the learned trial
court should have tested and scrutinized the
evidence of PW-1 Ram Prasad carefully
before
deposing
confidence
on
him,
particularly when mother and brother of the
deceased were also examined and they did
not support the prosecution version. PW-1
Ram Prasad is father of deceased. PW-2 is
mother who is not supporting prosecution
version. It cannot be said that daughter will
not tell about the ill-treatment done with her
in her sasural to her mother. Mother is
primary caretaker of her children in the
house. Often children tell about their grief,
sufferings to their mother who tell it to the
father. On the contrary it cannot be possible
to conceal such things from mother and to
disclose it before the father only. Even
brother may also not remain unknown to such
fact. Further PW-1 has stated categorically in
his cross-examination that her daughter
committed suicide and set herself ablaze on
account of being prevented from making
higher studies. This cause behind her suicide
is again supported by the mother of deceased
PW-2
and
brother
PW-8.
In
such
circumstances, it was not proper and safe to
place reliance on his statement given in
examination-in-chief, so as to hold the
appellants guilty, particularly when there was
no specific mention of any incident of dowry
demand and harassment or any cruelty of
such nature which could drive the deceased to
end her life. On the contrary, they have stated
that she was ill-tempered and she herself
committed suicide.

49. Thus, I find that the evidence of
PW-1 as made during examination-in-chief is
shaky, unreliable and not worthy of credence.
Other witnesses have not supported the
prosecution version, therefore, prosecution
has miserably failed to prove the charges
against the appellants under Section 304B,
498A I.P.C. and 3⁄4 Dowry Prohibition Act.

50. Consequently the finding recorded
by learned trial court becomes perverse and
conviction based on it cannot sustain. The
judgment and order dated 28.09.2019 is,
hereby, set aside.

51. Accordingly, the appeals are
allowed. Appellants, if in custody, are
directed to be released forthwith, if not
wanted in any other case.

52. Copy of this judgment alongwith
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------

(2021)10ILR A1059
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE NAVEEN SRIVASTAVA, J.

Criminal Appeal No. 3092 of 1985

Mahendra @ Motey ...Appellant(In Jail)
Versus
State of U.P. ...Respondent
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri A.R.B. Kher, Sri Amit Kumar Srivastava,
Sri Amit Kumar Srivastava (AC), Sri Hare
Krishna Tripathi, Seema Pandey (Amicus
Curiae), Sri Shiv Bahadur Yadav

Counsel for the Respondent:
A.G.A.

Criminal Law - Murder - Indian Penal
Code, 1860 - Section 302 - Murder - Proof -
while several persons were gambling on street
accused took his position behind deceased and
several axe blows on deceased, on account of
which
deceased
died
-
doctor
witness
categorically opined that injury nos.1 to 3 could
have been caused by axe & that injury no.4
could have been caused by the blunt side of the
axe - injury nos. 1 to 4 were sufficient to cause
death of the deceased - chemical examination
report also indicated human blood on axe - use
of axe in the commission of the offence stood
proved - manner and description of committing
the offence by the present accused-appellant
proved satisfactorily to the hilt - Conviction,
proper (25, 26, 27)

Allowed. (E-5)

(Delivered by Hon'ble Arvind
Kumar Mishra-I, J.)

1. Heard Ms. Seema Pandey, learned
Amicus Curiae for the appellant, Sri Bhanu
Prakash Singh and Sri Rajeev Kumar Rai,
learned Brief Holders for the State and
perused the material available on record.

2. By way of instant criminal appeal,
challenge has been made to the correctness
and sustainability of the judgment and
order of conviction dated 31.10.1985
passed by the Sessions Judge, Jhansi in
Sessions Trial No. 37 of 1985 (State vs.
Mahendra alias Motey and another),
arising out of Case Crime No.326 of 1984,
Police Station - Kotwali, District - Jhansi,
whereby the accused-appellant- Mahendra
alias Motey has been convicted under
Section - 302 I.P.C. and sentenced to
undergo imprisonment for life.

3. The relevant factual matrix of this
case as discernible from record appears to
be that the informant- Ghamandi Lal orally
lodged report at Police Station - Kotwali,
District - Jhansi on 22.12.1984 at about
12:45 p.m. regarding the occurrence of the
same day, which took place around 11:0011:30 a.m. with the following assertions
that informant is Ghamandi Lal son of
Ramdas Kori, resident of Mohalla - Sagar
Gate, Police Station - Kotwali, District -
Jhansi. On 22.12.1984, one Bal Krishna
son of Hardas, resident of Mohalla - Sagar
Gate, District - Jhansi came to the house of
the informant and informed him that his
son Narsi has been done to death by an axe
by Mahendra alias Motey s/o Rameshwar
Badhai and Ghanshyam alias Ramu son of
Dayaram Badhai around 11:00 a.m. in the
street of 'Potey Baba' near the house of
Hari Ram Chamar. The incident has been
witnessed by Narendra son of Panna Lal,
Pramod son of Ayodhya, Rajju son of
Sarman Dheemar, all residents of Mohalla -
Sagar Gate, District - Jhansi. Hearing this,
the informant rushed to the spot and found
his son dead and an axe was also found
lying over there. The informant also saw
injury on the head and neck of his son,
Narsi.

4. It was also informed that
informant's son, Ramu and Motey are pickpockets and there was some dispute over
share of the money obtained by pickpocketing, due to which some quarrel took
place between the informant's son and
Mahendra
alias
Motey
(the
present
appellant), the report in that regard was
lodged about one year ago. Thereafter,
three-four months before the occurrence, an
10 All. Mahendra @ Motey Vs. State of U.P.
1061
altercation took place between Ramu and
Narsi with regard to outraging the modesty
of the sister of Ramu. The father of Ramu
also complained about it to the informant.
On account of the aforesaid enmity, the
informant's son was done to death.

5. On the oral statement, the report
was taken down in the Check F.I.R. by
Constable - Moharrir, Ranjit Singh Sengar,
who after writing the report, read over the
same to the informant and obtained his
signature on it. This oral report as
contained in the Check F.I.R. is Ext. Ka.1
appears at Case Crime No. 326 of 1984,
under Section - 302 I.P.C., Police Station -
Kotwali, District - Jhansi and, accordingly
a case was registered in the general diary at
Rapat No. 16, at aforesaid case crime
number under aforesaid sections of I.P.C.
The General Diary entry is Ext. Ka.8.

6. The investigation ensued and was
entrusted to P.W.4 Yashpal Singh Punia,
who
started
the
investigation
on
22.12.1984. The investigating officer has
testified to the fact of oral report being
lodged by the informant- Ghamandi Lal,
while
the
investigating
officer
was
present at the police station around 12:45
p.m. on 22.12.1984. As per his version,
the Check F.I.R. was entered at the
instance and on the dictation of the
informant, Ghamandi Lal (P.W.1) given
to the Constable-Moharrir- Ranjit Singh
Sengar. After the report was so taken
down in the Check F.I.R., it was read
over to the informant who after hearing
the same, appended his signature on it.
The Check F.I.R. was proved as Ext.
Ka.1. The investigating officer has also
proved the concerned general diary entry
as Ext. Ka.8. He proceeded to the spot in
the street of 'Potey Baba' , where he
found the dead body and prepared the
inquest report (Ext. Ka.2), the very same
day. In the opinion of the inquest
witnesses and the investigating officer, it
was found convenient to send the body
for postmortem examination. Therefore,
relevant papers were prepared, form
no.13, challan dead body, specimen seal
and
letter
to
C.M.O./C.M.S.
for
conducting
postmortem
examination.
These papers are Ext. Ka.3 to Ext. Ka.6.

7. Thereafter, the dead body was
sent for postmortem examination at the
mortuary, Jhansi, where the postmortem
examination
was
conducted by
Dr.
Sudarshan Bhuinya P.W.5 on 23.12.1984
at 1:00 p.m., wherein the doctor found the
following ante-mortem injuries on the
body of the deceased :-

(1) Incised wound, 11 c.m. x 1.5
c.m. over ocipital bone in middle in
horizontal manner, bone deep and the bone
is divided into pieces.

(2) Incised wound 8 c.m. x 2.5
c.m., bone deep in horizontal manner from
lateral angle of left mandible to back of
neck. All the underlying things were cut.

(3) Incised wound bone deep,
11.5 c.m. x 5 c.m. in horizontal manner, 1
c.m. below injury no.2 and all underlying
things were cut.

(4) Lacerated wound 4 c.m. x 1⁄2
c.m. in horizontal manner, 2 c.m. below the
injury no.3.

(5) Abrasion 3.5 c.m. x 1⁄2 c.m.
over left deltoid muscle in upper part.

(6) Abrasion 0.5 c.m. x 0.3 c.m.
over middle of right middle and ring finger
on dorsal aspect.

8. In the opinion of doctor, the cause
of death was stated to be due to shock and
haemorrhage on account of ante-mortem
injuries.
1062 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The investigating officer also
prepared the site-plan of the spot, which is
Ext. Ka.9. He took into his possession an
axe (Material Ext.1), which allegedly
Motey had left behind on the spot, while
running away after committing the murder
of Naresh Kumar alias Narsi, sealed it in a
bundle and prepared a memo Ext. Ka.10.
Besides, he also took into his possession,
blood stained and simple earth Ext. 5 and
Ext. 6 respectively, and sealed them in
containers and prepared a memo of the
same Ext. Ka.11. Further, the investigating
officer also prepared memo of slipper
belonging to the deceased as Ext. Ka.12.
Besides the above exhibits, other papers are
Ext.
Ka.14
and
Ext.
Ka.15.
After
completing the investigation, charge-sheet
(Ext. Ka.13) was filed against the appellant.

10. Pursuant thereto, the Sessions
Judge, Jhansi, heard both the sides on point
of charge and was prima-facie satisfied
with case against the accused-appellant,
accordingly, framed charge under Section
302 I.P.C. charge was read over and
explained to the accused-appellant who
abjured the charge and opted for trial.

12. The prosecution, in order to prove
guilt of the appellant examined as many as
five witnesses namely P.W.1 who is the
informant- Ghamandi Lal, P.W.2 Narendra
and P.W.3 Bal Krishna are the two eye
witnesses of the occurrence. P.W.4 Yashpal
Singh Punia is the investigating officer of
this case and Dr. Sudarshan Bhuinya
(P.W.5), who conducted autopsy on the
body of the deceased Narsi.

13. Learned Sessions Judge, after due
appraisal of facts and evidence on record
found charge under Section - 302 I.P.C.
proved against the appellant beyond doubt.
Consequently, finding of conviction was
recorded and accused was sentenced to
imprisonment for life, which paved way for
this appeal.

14. Ms. Seema Pandey, learned
Amicus Curiae for the appellant has
vehemently claimed that in this case, in so
far as the F.I.R. is concerned, the same is
ante-timed and the occurrence was not seen
by
any
person.
The
witnesses
of
occurrence, particularly P.W.2 Narendra
and P.W.3 Bal Krishna, respectively are
pocket witnesses of the police, their
testimony on the whole does not inspire
confidence and the same is contradictory.
The site-plan of the occurrence does not
show the place where the accused-appellant
Mahendra @ Motey was standing. The
incident in question is not supported by any
independent witness. The motive suggested
for committing the offence is trivial and the
same is not properly established by the
prosecution.

15. Learned A.G.A. has refuted the
aforesaid contention raised by learned
amicus curiae for the appellant by claiming
that the entire incident has been duly
proved by the clinching evidence and there
is
no
material
contradiction
in
the
testimony of the prosecution witnesses. To
claim that the F.I.R. is ante-timed is neither
proved nor gathered from the attendant
facts and circumstances of the case. The
prosecution evidence inspires confidence
and is clinching on the point of occurrence.
The presence of the eye witnesses near the
place of occurrence is quite natural and
both the witnesses of fact P.W.2 and P.W.3
are residents of the same locality/village.
The conviction and the sentence imposed
upon the appellant is justified. Upon
consideration of the rival submissions, the
following
moot
point
arises
for
adjudication of this appeal, whether the
10 All. Mahendra @ Motey Vs. State of U.P.
1063
prosecution has been able to prove its case
against the accused-appellant beyond all
reasonable doubt under Section - 302 I.P.C.
?

16. The occurrence is stated to have
taken place on 22.12.1984 around 11:30
a.m. in locality Sagar Gate. After the
occurrence took place, information of the
occurrence was received by the informant,
Ghamandi Lal, son of Ramdas Kori,
resident of Sagar Gate, Police Station -
Kotwali, District - Jhansi, the very same
day on being informed by P.W.3 Bal
Krishna, son of Hardas, resident of Sagar
Gate, District - Jhansi. He informed that
informant's son- Narsi has been done to
death by the appellant around 11:30 a.m.
and the occurrence took place near the
house of Hari Ram Chamar, in the street of
'Potey Baba' by assaulting with axe and the
incident has been witnessed by Narendra
son of Panna Lal, Pramod son of Ayodhya,
Rajju son of Sarman Dheemar, all residents
of Sagar Gate, District - Jhansi. Upon
coming to know about the occurrence, the
informant rushed to the spot, where he
found his son dead and one axe lying near
him. He also noticed wound/injury on the
head and neck of deceased-Narsi.

17. Bare perusal of the oral report
(Ext. Ka.10) reflects that the informant's
son and the appellant were indulged in
pick-pocketing and some dispute arose on
account of share of money so obtained by
pick-pocketing. There was also some
dispute that took place between the
deceased and the appellant one year ago
from the date of the incident, regarding
which, a report was lodged. It was also
alleged in the report that one Daya Ram of
the locality had complained that his
daughter was teased by the deceased-Narsi
and there was some quarrel three months
ago between the deceased Narsi and
Ghanshyam and because of which, the
informant's son was done to death.

18. Now insofar as lodging of the
F.I.R. is concerned, it appears from the
testimony of P.W.1- Ghamandi Lal- the
informant that as soon as he came to know
about the occurrence from P.W.3 Bal
Krishna, he rushed to the spot where he
found his son dead and he also found the
blood stained axe lying on the spot. He
went to Police Station - Kotwali, District
Jhansi and lodged the report orally to
Munshi ji at Police Station - Kotwali and
after the same was noted in the Check
F.I.R., it was read over to him and then he
appended his signature on it. This report in
the form of Check F.I.R. has been proved
as Ext. Ka.1.

19. It has been testified by P.W.1 that
he was accompanied by one Suresh Dixit to
the police station and the distance of the
police station from the place of occurrence
is stated to be one and a half kilometers. It
being so, the oral report was lodged around
12:45 p.m. on 22.12.1984, whereas, the
occurrence took place around 11:30 a.m.
The inquest report was prepared the very
same day and its preparation commenced at
2:10 p.m. on 22.12.1984.

20. As per the testimony of P.W.4
Yashpal Singh Punia, the report was taken
down in the Check F.I.R. by the ConstableMoharrir- Ranjit Singh Sengar orally
dictated to him by the informant Ghamandi
Lal and at that point of time around 12:45
p.m., the investigating officer was also
present at the police station and he has
proved the Check F.I.R. as Ext. Ka.1.
Nothing
has
emerged
in
the
cross
examination of both the informant P.W.1
Ghamandi Lal and Yashpal Singh Punia,
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
the investigating officer, P.W.4, which may
lead to infer about fact that the Check
F.I.R. lodged on 22.12.1984 at Police
Station - Kotwali, District - Jhansi at 12:45
p.m. is either ante-timed or by any
attendant circumstances as well.

21. Consequently, arguments raised to
that ambit is not sustainable. Insofar as the
point of occurrence is concerned, then
obviously P.W.1, the informant is not a
witness of the occurrence. The star
witnesses of the occurrence are both
Narendra (P.W.2) and Bal Krishna (P.W.3).
A conjoint reading of the testimony of both
the witnesses brings to the surface fact of
occurrence when it has been testified by
them that several persons were gambling in
the street of 'Potey Baba' near the house of
Bhagirath. In the meanwhile, appellant and
one Ramu said that they are not having any
money. Ramu kept sitting over there,
whereas, the appellant (Mahendra @
Motey) went to take money and came back
on the spot with one axe. The deceased-
Narsi saw the axe and commented the axe
is nice '(िुल्हाडी अच्छी है)' but the appellant
did not respond as the gambling bet was
going on. The appellant took his position
behind the deceased Narsi and caused axe
blow on his head. The accused Ramu
present over there also exhorted him and
the appellant caused several axe blows on
the deceased. The first axe blow given by
the appellant made Narsi to fall on the
ground and after that two separate axe
blows were given by him, on account of
which, Narsi died. The other co-accused,
who were present on the spot, fled away
from the scene. The appellant left behind
the axe on the spot .

22. It has been specifically testified
by Narendra P.W.2 that he was guarding
the place, lest some policemen should
come. Thus, presence of Narendra on the
spot is undoubtedly proved and on this
point, nothing adverse has emerged in his
cross examination. Only this much has
been asked that he is pursuing his studies,
then he stated that he has passed 9th class.
Now, he has left his studies and at that
point of time when the occurrence took
place, he was studying in Higher Secondary
School, but on on that date of occurrence,
he did not attend his school. He also has
stated about the place of occurrence that he
was standing at a distance of eight steps
from the gamblers in front of the house of
Soni. Narsi arrived on the spot as soon as
betting started and Motey went to his home
to take money, but he came back
possessing an axe. No one present over
there did ask him as to whether he brought
the money or not and no one asked him to
participate in the gambling.

23. In his cross examination, this
witness (P.W.2) has categorically stated
that he used to keep guarding as and when
the gamblers indulged in betting on
previous occasion too. In his cross
examination, he has testified in clear cut
terms about the manner of occurrence as to
how it occurred. He has stated that the first
blow of axe was given to Narsi, which
caused him fell on the ground with mouth
towards the earth. Thereafter, several axe
blows were given to him. He also has stated
that he was examined by the investigating
officer. It is relevant to take note of fact
that a suggestion has been given by the
defence to P.W.2 as appearing on page
no.31 of the paper book that on the date of
occurrence, Narsi, Pramod and Rajju were
gambling and the bet was won by Narsi,
then they began to snatch money from him,
which caused quarrel among them and due
to which, the above persons killed Narsi
and made their escape goat. The suggestion
10 All. Mahendra @ Motey Vs. State of U.P.
1065
has been specifically denied. Now, the
import of this specific suggestion is that the
incident of gambling on the day of
occurrence at the particular place is
admitted to the defence itself and there is
no denying of fact that no such gambling
ever took place.

24. Conversely, the defence has not
been able to establish fact that in fact some
quarrel arose among Narendra P.W.2,
Pramod and Rajju and they murdered
Narsi. Here suggestion has been made to
another witness Bal Krishna P.W.3 too that
he was not present on the spot. However,
he has categorically stated that he was
present on the spot, not only he but also
Narendra P.W.2 was present on the spot
and he has dittoed the version of the
occurrence in line with that of P.W.2
Narendra. In his cross examination P.W. 3
Bal Krishna has stated that he is not related
to Ghamandi Lal and he has clarified to the
point of axe blow being caused to Narsi by
the appellant-Mahendra @ Motey.

25. From bare perusal of the ante
mortem injuries, we discover that as many as
six ante-mortem injuries have been caused on
the body of the deceased. The doctor witness
has categorically opined that injury nos.1 to 3
could have been caused by axe. Here the
testimony of doctor witness, Sudarshan
Bhuiyan is worthy of examination. He has
proved the postmortem examination report
Ext.
Ka.7.
However,
genuineness
of
postmortem examination report is admitted to
the defence. The doctor has opined that these
injuries could have been caused around 11:30
a.m. on 22.12.1984 and injury no.4 could
have been caused by the blunt side of the axe
and injury nos. 1 to 4 as above were sufficient
to cause death of the deceased, whereas,
injury nos.5 and 6 could have been caused,
while falling on the ground. That way, the
manner and description of committing the
offence by the present accused-appellant is
proved satisfactorily to the hilt.

26. Further, vide general diary entry no.
44, dated 19.02.1985, which is Ext. Ka. 15,
the case property was sent for chemical
examination at the laboratory concerned at
Agra, whereby chemical examination, report
dated 21.08.1985 Ext. Ka.16 has been
obtained and the report indicates that human
blood of Group-A was found on T-shirt,
Angauchha and axe. That way, the use of axe
in the commission of the offence also stood
proved. This particular aspect regarding the
manner of occurrence being caused by the
appellant has been taken into consideration
by the trial court too in a consistent manner.
In the cross examination, Dr. Sudarshan
Bhuinya P.W. 5 has stated that injury nos.1, 2
and 3 were caused by separate blows and
these injuries are admitted to the defence and
this was sufficient to cause death in the
ordinary course of nature, as per testimony of
the doctor witness.

27. We have already considered the
material aspects of the occurrence, which
reasonably
fit
in
the
attendant
circumstances and facts of this case and it
eventually turns out that the prosecution
has been able to prove charge against the
accused-appellant beyond shadow of doubt.
The learned trial court has also taken
comprehensive
view
of
the
entire
occurrence and has discussed its various
aspects and rightly recorded conviction
against the present appellant and passed
sentence against him, which needs no
interference, at this juncture, for aforesaid
specific reasons.

28. Accordingly, we uphold the
judgment of conviction and order dated
31.10.1985 passed by the Sessions Judge,
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
Jhansi, in Sessions Trial No. 37 of 1985
(State vs. Mahendra alias Motey and
another), arising out of Case Crime No.
326 of 1984, under Section - 302 I.P.C.
Police Station - Kotwali, District - Jhansi.
Consequently, the aforesaid appeal lacks
merit and the same is dismissed.

29. In this case, appellant - Mahendra
alias Motey is in jail. The appellant shall
serve out the remaining sentence imposed
upon him by the trial court.

30. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2021)10ILR A1066
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J

Service Bench No. 1800 of 2015(Now S/S)

Bipul Raman ...Petitioner
Versus
State of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Sanjay Kumar Srivastava

Counsel for the Respondents:
C.S.C., Amar Chaudhary, Lalit Shukla

A. Service Law - Disciplinary enquiry - If
the charge (s), as indicated in the chargesheet, has/have been declared as 'not
proved' then nothing can be said to be
'proved' or 'partially proved' on the basis
of
additional
findings
regarding
any
allegation which is not the subject matter
of the enquiry in question and such
findings, if any, shall be treated as
perverse finding. (Para 18)
Hence, in the present case, the charge no. 5
and 6 shall be treated to be not proved
inasmuch as the inquiry officer has himself
indicated that the charge no. 5 and 6 are not
proved against the petitioner. (Para 18)

B. The disciplinary authority may not
award any punishment banking upon
findings of inquiry officer, wherein none of
the charges are proved against the
petitioner,
without
being
disagreed
thereon and without issuing any show
cause notice or seeking explanation from
the
petitioner
on
the
point
of
disagreement. Since the inquiry officer has
said that charges no. 5 and 6 are partly proved
so disciplinary authority may not legally say that
both the charges are proved as said by him in
the punishment order. If the disciplinary
authority was of the view that both the charges
should be treated proved, a show cause notice
of disagreement must have been issued seeking
explanation from the petitioner. In absence of
aforesaid legal requirement the impugned
punishment order (dated 26/29-9-2015) shall
not survive as it would be nullity in the eyes of
law. (Para 19)

Writ petition allowed. (E-4)

Present
petition
assails
order
dated
26/29.09.2015,
passed
by
Chairman,
Administrative
Committee,
U.P.
Cooperative Dairy Federation, Lucknow.

(Delivered by Hon'ble Rajesh
Singh Chuahan, J.)

1.

Heard
Sri
Sanjay
Kumar
Srivastava,
leaned
counsel
for
the
petitioner, learned Standing Counsel for the
State respondents and Sri Lalit Shukla,
learned counsel for the U.P. Cooperative
Dairy Federation.

2. By means of present writ petition
the petitioner has assailed the order dated
26/29-9-2015 passed by the opposite party
no.
4
i.e.
Chairman,
Administrative
Committee,
U.P.
Cooperative
Dairy