# Managing Director, U.P. State Ware Housing Corporation and another v. Sri Radhey Shyam - **Citation:** (2004) 2 ILRA 550 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2004-08-17 - **Case number:** Special Appeal No. 960 of 2004 - **Bench:** M. Katju, Umeshwar Pandey - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/managing-director-u-p-state-ware-housing-corporation-and-another-v-sri-radhey-40422 - **Pages:** 2 ## Headnote Code of Civil Procedure-O.IX R. 13- Ex parte decree- order of restoration and condonation of delay by appellate court by common order, held, not illegal, where ground for restoration of suit and condonation of delay is same. Held: Para 5 After hearing learned counsel for petitioners and considering materials on record, I am of the view that as reasons disclosed for non-appearance on the date fixed in the suit and delay in filing restoratio ## Text http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2004 550 possession has been taken by the respondents. After all, the Amin is not expected to remain on the spot day and night after executing the possession memo. The land in question is required for planned industrial development and as held in Kaloo Ram vs. State of U.P. (supra) this is for public purpose and is urgent as the country requires industrialization for its progress. The relevant case law has been discussed in great detail in Kaloo Ram's case (supra) and we fully agree with the same. Application rejected. Recall application rejected. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.8.2004 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE UMESHWAR PANDEY, J. Special Appeal No. 960 of 2004 Managing Director, U.P. State Ware Housing Corporation and another ....Appellants Versus Sri Radhey Shyam ...Respondent Counsel for the Appellants: Sri O.P. Singh Counsel for the Respondent: Sri V.K. Singh Service Law-Dismissal-Chargesheet- served-not replied by the delinquent employee-disciplinary authority is bound to hold ex-party enquiry-without enquiry dismissal order-held illegal. Held- Paras 4, 5 & 6 From the above facts it is evident that in fact on enquiry was held against the writ petitioner after giving him the charge sheet. The Division Bench of this Court has held that after the charge sheet is given the date, time and place of the enquiry should be intimated to the employee and on that date the oral and documentary evidence against the petitioner should be led in his presence and he should be given opportunity of cross examination. If despite intimation the employee fails to appear in the enquiry then an exparte enquiry should be held, but the employee's service cannot be terminated without holding an enquiry, the enquiry officer must hold an exparte enquiry in which the evidence must be led against the employee. In the present case a perusal of the enquiry report (Annexure 28 to the writ petition) shows that merely because the petitioner did not reply to the charge sheet it was deemed that he accepted the charge. This is not legally correct as held in Subhash Chandra Sharma's case. Case law discussed: AIR 1962 SC 1348 1999 (4) AWC 3227 (Delivered by Hon'ble M. Katju, J.) 1. This special appeal has been filed against the impugned judgment of the learned Single Judge dated 9.7.2004. 2. We have heard the learned counsel for the parties and have carefully perused the impugned judgment and find no infirmity in the same. 3. The facts are set out in great detail in the judgment of the learned Single Judge and hence we are not repeating the same. However, we may mention that a charge sheet dated 21.3.1993 in respect of caste certificate was issued to the petitioner but the enquiry in this regard was subsequently dropped. Thereafter no enquiry was held against the writ petitioner and instead the enquiry report dated 29.7.1999 was submitted by the http://www.allahabadhighcourt.nic.in 2 All] M.D., U.P. State Ware Housing Cor. & another V. Sri Radhey Shyam & others 551 enquiry officer, copy of which is Annexure 28 to the writ petition. A perusal of the enquiry report shows that all that is stated therein is that since several opportunities were given to the writ petitioner for replying to the charge sheet but he did not do so, hence it would be deemed that he has accepted the charges against him. Thereafter a show cause notice was issued to the petitioner on 10.8.1999 to which he gave a reply and thereafter the impugned dismissal order dated 14.2.2000 was passed. Against that order the writ petition was filed in this Court which has been allowed by the learned Single Judge. 4. From the above facts it is evident that in fact on enquiry was held against the writ petitioner after giving him the charge sheet. 5. The facts of the case are covered by the decision of the Supreme Court in the Imperial Tobacco company of India Ltd. vs. Its workmen, AIR 1962 SC 1348 which has been followed by a Division Bench of this Court in Subhash Chandra Sharma vs. Managing Director, 1999 (4) AWC 3227. The Division Bench of this Court has held that after the charge sheet is given the date, time and place of the enquiry should be intimated to the employee and on that date the oral and documentary evidence against the petitioner should be led in his presence and he should be given opportunity of cross examination. If despite intimation the employee fails to appear in the enquiry then an exparte enquiry should be held, but the employee's service cannot be terminated without holding an enquiry, the enquiry officer must hold an exparte enquiry in which the evidence must be led against the employee. 6. In the present case a perusal of the enquiry report (Annexure 28 to the writ petition) shows that merely because the petitioner did not reply to the charge sheet it was deemed that he accepted the charge. This is not legally correct as held in Subhash Chandra Sharma's case (supra). 7. For the reasons given above there is no force in this appeal and it is dismissed. Petition dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.7.2004 BEFORE THE HON'BLE S.N. SRIVASTAVA, J. Civil Misc. Writ Petition No. 27737 of 2004 Ram Prasad and another ...Petitioners Versus Moti Singh and others ...Respondents Counsel for the Petitioners: Sri D.V. Jaiswal Counsel for the Respondents: S.C. Code of Civil Procedure-O.IX R. 13- Ex parte decree- order of restoration and condonation of delay by appellate court by common order, held, not illegal, where ground for restoration of suit and condonation of delay is same. Held: Para 5 After hearing learned counsel for petitioners and considering materials on record, I am of the view that as reasons disclosed for non-appearance on the date fixed in the suit and delay in filing restoration application are same, appellate court rightly allowed restoration application after condoning delay.