# Mahesh Narain Gupta v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-21
- **Case number:** Civil Misc. Writ Petition No. 12500 of 2010
- **Bench:** Sheo Kumar Singh, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-narain-gupta-v-state-of-u-p-and-others-41922
- **Pages:** 7

## Headnote

Civil Services Regulation-Rule-351-ADismissal order-Punishment inflicted
without proper opportunity to defend
without indicating time place and date
of inquiry-order not sustainable -
punishment
order
quashed
with
liberty to proceed as fresh.

Held: Para 22

On the facts and in the light of
analysis so made, we are of the
considered view that the impugned
order of punishment is liable to be
quashed
with
the
directions
that
Enquiry
Officer
is
to
provide
opportunity to the petitioner to file
reply in respect of charges and then to
proceed with the enquiry proceeding
after opportunity in the manner so
permissible in law.
Case law discussed:
1995 SCC Supp.(3), 212, AIR 1960 SC 160,
1960(4)AWC
3227,
2008(1)ADJ;
284(DB(LB))1964AC40

## Text

570 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

20. The petitioner shall also be
entitled to cost which is quantified to Rs.
20,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2011

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 12500 of 2010

Mahesh Narain Gupta

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.P. Tiwari

Counsel for the Respondent:
C.S.C.

Civil Services Regulation-Rule-351-ADismissal order-Punishment inflicted
without proper opportunity to defend
without indicating time place and date
of inquiry-order not sustainable -
punishment
order
quashed
with
liberty to proceed as fresh.

Held: Para 22

On the facts and in the light of
analysis so made, we are of the
considered view that the impugned
order of punishment is liable to be
quashed
with
the
directions
that
Enquiry
Officer
is
to
provide
opportunity to the petitioner to file
reply in respect of charges and then to
proceed with the enquiry proceeding
after opportunity in the manner so
permissible in law.
Case law discussed:
1995 SCC Supp.(3), 212, AIR 1960 SC 160,
1960(4)AWC
3227,
2008(1)ADJ;
284(DB(LB))1964AC40

(Delivered by Hon'ble Sheo Kumar Singh, J.)

1. Heard Shri R.P. Tiwari learned
counsel in support of this writ petition
and learned Standing Counsel who
appears for the respondents.

2. Prayer in this petition is for
quashing the impugned order dated
26.11.2009 delivered to the petitioner
on 17.12.2009 ( Annexure No. 3 to the
writ petition) passed by the State
Government by which the disciplinary
proceeding against the petitioner has
been concluded by giving two directions
i.e. (i) recovery of a particular amount
by way of suit; (ii) deductions from the
pensionary benefit to the tune of 10% .

3. As pleadings inter-se parties are
exchanged, both side requested for the
hearing and decision and, thus, we have
heard the matter.

For disposal of the writ petition,
facts in brief will suffice.

4. Petitioner was in service in the
Public Works Department and on
31.1.2006 he retired from the post of
Executive Engineer. During the entire
service period, the petitioner claims,
that he was neither charge sheeted nor
any complaint against him ever came. It
is only vide letter dated 5.5.2008, the
petitioner was informed that pursuant to
the order dated 6.6.2006, disciplinary
proceedings against him has been
initiated under C.S.R. Rule 351(A) and
the Chief Engineer P.W.D. Kanpur was
appointed as an enquiry officer. Enquiry
Officer
submitted
its
report
on
18.3.2008 by which the petitioner was
called upon to file objection which he
filed, and it is thereafter, by the
2 All] Mahesh Narain Gupta V. State of U.P. and others
571
impugned
order
dated
26.11.2009,
punishment
was
awarded
to
the
petitioner, upon which this petition.

5. Submission of the learned
counsel for the petitioner is that besides
challenging various charges on merit,
the challenge is the entire enquiry
proceedings and report submitted by the
Enquiry Officer being in violation of
principle of natural justice. It is
submitted that neither any date, place
and time of enquiry, has been fixed nor
the petitioner has been provided the
relevant document so asked for by him
nor he has been given reasonable
opportunity to file reply and evidence in
support of his version.

6. Argument is that apart from
some earlier letters written by the
Enquiry Officer, he wrote a letter to the
petitioner on 25.2.2008 granting one
week's time to file reply and evidence
but that letter was dispatched to the
petitioner
on
14.3.2008
which
he
received on 19.3.2008 but the Eqnuiry
Officer had already submitted report on
18.3.2008 and, therefore, it is a case of
lack of opportunity to file reply/
evidence,
lack
of
opportunity
to
participate in the enquiry proceedings,
lack of opportunity to meet out the
evidence if any collected by the Enquiry
Officer.

7. It is pointed out that the Enquiry
Officer has not recorded any evidence
and no witness was examined under
intimation to the petitioner so as to have
an opportunity to meet the facts and
cross examine them.

8. It is then submitted that even
from the report of the Enquiry Officer it
is clear that he has submitted a report
solely on the ground that the petitioner
has not submitted any reply and papers
in support of his defence. It was then
submitted that irrespective of non filing
of
response/participation
of
the
petitioner, even if the enquiry officer
was to proceed with ex parte enquiry, he
was supposed to collect oral and
documentary evidence in respect of the
charges and thus, the report of the
enquiry officer which states that on
account of non filing of response and
evidence, charges against the petitioner
will be deemed to have been proved
automatically, is totally erroneous and
wrong approach and, thus, by placing
reliance on that report, impugned order
of punishment is liable to be quashed.
Hence the petitioner is liable to be
provided an opportunity to file objection
to the charges as stated in the charge
sheet and otherwise to led evidence by
giving him opportunity to participate in
the
fresh
enquiry
proceedings
in
accordance with law.

9. In response to the aforesaid,
learned Standing Counsel submits that
time and again letter was written to the
petitioner to file response and to
participate in the enquiry and, therefore,
if Enquiry Officer submitted ex parte
enquiry reort by stating the fact that the
charges
are
proved
then
and
no
exception can be taken to it.

10. Submission is that although it
is mentioned in the enquiry Officer's
report
that
on
account
of
non
submission of the reply charges against
the petitioner will be deemed to have
been proved but in the earlier portion of
the report a reference to some document
on record has been given and thus, no
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
fault in the the enquiry proceeding and
about the report of the Enquiry Officer
can be found. Submission is that on the
facts and material on record, Enquiry
Officer has rightly submitted the exparte report which has been accepted by
the competent authority and punishment
has been given to the petitioner.

11. In view of the aforesaid, we
are to decide the matter.

There is no dispute about the fact
that the petitioner stood retired on
31.1.2006 and it is only vide letter dated
5.5.2008, he was informed that pursuant
to the order dated 6.2.2006, disciplinary
proceeding against him, has been
started. It has specifically been stated in
paragraph 57 of the writ petition that
vide
letter
dated
25.8.2008,
the
petitioner was given one week's time to
submit his defence but that letter was
dispatched
on
14.3.2008
and
was
delivered to the petitioner on 19.3.2008
whereas the enquiry officer submitted a
report on 18.3.2008 itself. It has further
been stated in paragraph 72 of the writ
petition that the Enquiry Officer never
fixed any date time and place of the
enquiry and the petitioner was never
informed
recording
his
appearance
before the Enquiry Officer nor required
documents
were
supplied
to
him.
Averments as made in paragraph no. 57
and 72 of the writ petition is quoted
below:

57. That the admitted fact by the
department is that vide letter dated
25.2.2008 enquiry officer gave one week
time to submit the defense, the letter
dated 25.2.2008 was dispatched on
14.3.2008 by the department, and it was
delivered
to
the
petitioner
on
19,.3.2008, but the enquiry officer
submitted the report on 18.3.2008,
hence even the respondent denied the
said opportunity, the enquiry report is
liable to be quashed. ."

72. That the enquiry officer never
fixed any date, time and place of
enquiry. Petitioner was never informed
regarding his appearance before the
enquiry
Officer, nor the required
documents were supplied to him, hence
the
entire
proceedings
held
and
culminated in impugned order against
sub Rule X of Rule 7 of the Service
Rules."

12. Reply to the specific averments
made in paragraphs 57 and 72 of the
writ
petition,
are
contained
in
paragraphs 38 and 39 of the counter
affidavit. On perusal of averments made
in paragraphs 38 and 39 of the counter
affidavit, it is clear that reply is too
vague and evasive and in fact there is no
denial of specific averment of non
fixing date, place and time of the
enquiry
and
at
the
same
time
despatching of letter dated 25.2.2008 on
14.3.2008 and its delivery to the
petitioner on 19.3.2008.

13. On these facts , it is clear that
Enquiry Officer submitted report on
18.3.2008
without
providing
opportunity
to
the
petitioner
to
participate in the enquiry proceeding if
any and at the same time, without
proper
opportunity
even
to
file
objection/evidence. It is a case of
awarding of punishment against retired
employee.

14. In all 19 charges were
mentioned in the charge sheet. Although
2 All] Mahesh Narain Gupta V. State of U.P. and others
573
in the charge sheet certain evidence in
support of the charges are shown but
perusal of the enquiry Officer's report
dated 18.3.2008 which has been pressed
for
awarding
punishment
to
the
petitioner, makes it clear that no
evidence
whatsoever
was
collected/recorded
by
the
enquiry
officer to get those charges proved.
Report of the Enquiry Officer is of two
pages and just after narrating the facts
that letters were sent but the petitioner
did not respond and filed any evidence ,
it has been concluded that all the
charges against the petitioner( Charges
1 to 19) are found to be proved.

15. On earlier dates learned
Standing Counsel was asked to obtain
the record so as to confirm the averment
as made in paragraph 57 and 72 of the
writ petition besides other facts. On
perusal of the record also, the averment
as made by the petitioner about the lack
of providing of opportunity as observed
in detail in preceding paragraphs, has
been found to be correct.

16. As it is a case of non recording
of
any
evidence
either
oral
or
documentary in the enquiry proceedings
and submission of the enquiry report
justifying all the charges only on the
ground
of
non
filing
of
the
reply/evidence from the petitioner's
side, we are of the view that going into
merit of the charges and to record own
finding may be neither proper nor
justified as that will be again exercise in
ex parte manner behind the back of the
petitioner i.e. without opportunity to
him.

17. 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 of 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 those documents
are sufficient enough to prove the
charges.

18. In no case, approach of the
Enquiry Officer that as no reply has
been submitted, the charges will have to
be
automatically
proved
can
be
approved. This will be erroneous. It has
been repeatedly said that disciplinary
authority has a right to proceed against
delinquent employee in ex parte 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.

19. Here we may refer to certain
decided cases in support of our view
that without an opportunity to the
delinquent employee to participate in
the enquiry proceedings and without
collecting evidence in presence of
charged
employee,
the
enquiry
proceeding and consequent action will
be held to be vitiated.
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

20. In the decision given by this
Court in the case of Sanghoo Ram Arya
Vs. The Chief Secretary, State of U.P.
and others, following observations will
be useful to be quoted here:

"17. It has been repeatedly held by
this Court as well as the Apex Court
that completion of the of the enquiry
without giving opportunity to crossexamine
the
witness
is
vitiated.
Reference can be made to the decision
as given in S.C. Girotna V. United
Commercial
Banim,
1995
SCC
Supp.(3) , 212, Punjab National Bank
Vs. A.I.P.N.B.E. Federation, AIR 1960
SC 160, Subhash Chandra Sharma Vs.
Managing Director U.P. Co-operative
Spining Mills Federation Ltd., 1960(4)
AWC, 3227."

In another decision given by this
Court in Mohd. Javed Khan Vs. State of
U.P. and others[ 2008(1) ADJ 284( DB(
LB)] following observations were made:

"5.
Learned
Counsel
for
the
petitioner has specifically argued that
the enquiry proceedings were without
jurisdiction and that the enquiry report
was back dated. The fact, however, is
that in this enquiry, the petitioner was
not
afforded
any
opportunity
to
participate therein by the enquiry
officer, as no date, time and place was
ever fixed nor was communicated to
him.

7. In view of the fact that the
petitioner
was
not
afforded
any
opportunity by the enquiry officer while
holding him guilty of the charges
levelled against him and submitted his
enquiry report to the appointment
authority, who did not look into the said
matter and passed the order of dismissal
from service, the entire proceedings as
well as the order impugned, are liable to
be set aside.

8.
Under
the
facts
and
circumstances
aforesaid,
that
the
petitioner
was
not
afforded
any
opportunity to participate in the enquiry,
we do not find it necessary to address
ourselves to other questions which have
been raised by the petitioner. The order
of dismissal from service is liable to be
set aside only on the aforesaid ground."

In recent judgment given by this
Court i.e. Writ Petition No. 36973 of
2010- Vijai Kumar Sinha Vs. State of
U.P. and others in respect of rule of
hearing
and
opportunity
following
observations were made:

"At
this
stage
some
more
observation in the old cases relating to
the rule of hearing and opportunity as
has been quoted in the recent judgment
of the Apex Court dated 15.4.2011 in
Civil Appeal No. 3261 of 2011 will be
useful to be quoted here:

"In the celebrated case of Cooper
V. Wandsorth Board of Works( 1863)
143 ER 414, the principle was stated
thus:

"Even God did not pass a sentence
upon Adam, before he was called upon
to make his defence"Adam" says God, "
where art thou? Has thou not eaten of
the tree whereof I commanded thee that
thou shouoldest not eat."

"Perhaps the best known statement
on the right to be heard has come from
2 All] Mahesh Narain Gupta V. State of U.P. and others
575
Lord Lorebum, L.C. In Board of
Education V. Rice ( 1911 AC 179 at
182), where he observed:

"Comparatively recent statues have
extended, if they have originated, the
practice of imposing upon departments
or offices of State the duty of deciding
or determining questions of various
kinds........In such cases......they must
act in good faith and fairly listen to both
sides, for that is a duty lying upon
everyone who decides anything. But i
do not think they are bound to treat such
questions
as
though
it
were
a
trial.........they can obtain information in
any way they think best, always giving a
fair opportunity to those who are parties
in the controversy for correcting or
contradicting any relevant statement
prejudicial in their view."

21. In Ridge V. Baldwin 1964 AC
40 Lord Reid emphasized on the
universality of the right to a fair hearing
whether it concerns the property or
tenure of an office or membership of an
institution. In O'Reilly V. Macman 1983
2 AC 237, Lord Diplock said that the
right of a man to be given a fair
opportunity of hearing, what is alleged
against him and of presenting his own
case is so fundamental to any civilized
legal system that it is to be presumed
that Parliament intended that failure to
observe the same should render null and
void any decision reached in breach of
this requirement. In Lloyd V. Memahon
1987 AC 625 Lord Bridge said:

"My Lords, the so-called rules of
natural justice are not engraved on
tablets of stone. To use the phrase
which better expresses the underlying
concept, what the requirements of
fairness
demand
when
any
body,
domestic, administrative or judicial, has
to make a decision which will affect the
rights of individuals depends on the
character of the decision-making body,
the kind of decision it has to make and
the statutory or other framework in
which it operates. In particular, it is well
established that when a statute has
conferred on any body the power to
make decisions affecting individuals,
the courts will not only require the
procedure prescribed by the statute to be
followed, but will readily imply so
much and no more to be introduced by
way of additional procedural safeguards
as will ensure the attainment of
fairness."

22. On the facts and in the light of
analysis so made, we are of the
considered view that the impugned
order of punishment is liable to be
quashed with the directions that Enquiry
Officer is to provide opportunity to the
petitioner to file reply in respect of
charges and then to proceed with the
enquiry proceeding after opportunity in
the manner so permissible in law.

23. For the reasons given above,
we quash the impugned order of
punishment
dated
26.11.2009
(
annexure no. 3 to the writ petition and at
the same time enquiry officer's report
dated 18.3.2008 is also hereby quashed.

24. The disciplinary authority will
be free to get the enquiry proceeding
proceeded after providing opportunity to
the petitioner from the stage of filing
response to the charge sheet in the
manner so provided in law.
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

25. Accordingly , this writ petition
succeeds and is allowed in the light of
directions as given above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 15202 of 2004

Shri Balji Tewari

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner :
Rahul Chaturvedi

Counsel for the Respondent:
C.S.C.

U.P. Public Service Tribunal Act, 1976Section 2(b)-Public Servant-Asst. Teacher
in recognized Private School-even getting
salary from Public exchor is not Public
Servant-as the appointing and controlling
authority is the management-Civil Suits
for arrears of salary-dismissed as not
maintainable-held-Trail
as
well
as
Revisional
Court
misdirected-order
quashed
matter
remitted
back
for
decision
on
merit
subject
to
other
objection if any.

Held: Para 5

It talks of a public servant in the service
or pay of the State Government. The
salary paid to a teacher of an aided
institution is actually salary paid by the
College itself pursuant to the aid received
from State Government. By virtue of the
provision of Payment of Salary Act, the
responsibility to ensure salary to teaching
staff is on the Government for which
tuition fee to the extent provided in the
Act is deposited by the College in the
State Exchequer. The employer of the
teacher is Committee of Management of
the School and salary is paid to the
teacher by the College and not by
Government. The revisional Court has
completely misdirected itself in holding
the petitioner a 'public servant'. Therefore
the impugned order cannot sustain.

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard learned counsel for the
parties and perused the record.

2. The order impugned in this writ
petition is passed by the Addl. District
Judge, Mathura holding that petitioner suit
No.292 of 1990 is not maintainable in view
of Section 6 of U.P. Public Service
Tribunal Act, 1976 (hereinafter referred to
as "Act 1976")on the ground that the
petitioner is a teacher in an aided private
school but since the liability for payment
of salary lie upon State Government,
therefore, is a holder of a civil post and is a
"public servant" as defined under Section
2(b) of the Act therefore the suit is not
maintainable.

3. It is contended that the logic and
reasoning assigned by revisional court is
wholly misconceived and is contrary to
law.

4. In my view, the submission is well
founded and the impugned order cannot be
sustained. The term "public servant" as
defined in Section 2(b) of the Act, reads as
under:

'Public servant' means every person
in the service or pay of-

(i) the State Government; or

(ii) a local authority not being a
Cantonment Board; or