# Manish Kumar v. G.M. Personnel Human Resource Management & Ors

- **Citation:** (2025) 1 ILRA 407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-16
- **Case number:** Special Appeal No. 614 of 2024
- **Bench:** Vivek Kumar Birla, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-kumar-v-g-m-personnel-human-resource-management-ors-52868
- **Pages:** 10

## Headnote

Krishna Mohan Asthana

A. Practice and Procedure - Special appeal
-
Judicial
review
-
Scope
-
Reappreciation of evidence - Permissibility -
Held, this Court cannot sit in appeal and
cannot re-appreciate the evidence. The
scope of judicial review by this Court is
very limited when the appellant-petitioner
is in special appeal against the judgment
of learned Single Judge by which the writ
petition was dismissed while exercising
the powers under Article 226 of the
Constitution of India. (Para 9)

B. Practice and Procedure - Special appeal
- Scope - Point was not raised before writ
court - Permissibility to raise in Special
Appeal - Held, the point, which was not
raised before the Writ court, the same
cannot be raised in special appeal. (Para
17)

C. Service Law - Departmental enquiry -
Unauthorized absence from duty - Fact
regarding this charge was admitted during
departmental enquiry - Non-supply of
enquiry report
- Effect - Held, no
prejudice was caused to the appellant
even it is assumed that enquiry report was
not supplied to him - Admitted facts need
not be proved whereas in the present case
full-fledged enquiry had taken place in
accordance with law. (Para 17 and 18)

Special Appeal dismissed. (E-1)
408 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

1 All. Manish Kumar Vs. G.M. Personnel Human Resource Management & Ors.
407
appellant, was suffering from an error
apparent on the face of record, as it was
passed after putting the burden of bringing
the evidence wrongly on the appellant that
he had participated in the second round of
counselling. The fact of the matter is that
all the relevant documents and the evidence
with
regard
to
the
procedure
of
appointment/counselling were with the
Board and in such a situation, the evidence
of participating in the second round of
counselling could not have been produced
by the appellant. The appellant was
selected as a general category candidate. In
view of the amendment made in Section 5
(3) of the Act, 1993, there was now no
provision to carry forward the vacancies in
the reserved category to the next selection.
Since in respect of the candidates who had
been
selected
after
both
rounds
of
counselling, a single/combined select list
had been prepared, as had been admitted by
the respondents, there was no error in the
petitioner's claim, whose name found place
at serial no.1 of the select list published
compositely.

15.
In
view
of
the
foregoing
discussions, we are of the opinion that the
present special appeal deserves to be
allowed and the same is, accordingly,
allowed. The impugned order passed by the
learned Single Judge dated 1.3.2024 is set
aside. Consequently, the order passed by
the Basic Shiksha Adhikari dated 2.12.2022
is also set aside. Since we have allowed the
special appeal, the appellant be reinstated
in service and he shall be entitled for all the
consequential benefits.
----------
(2025) 1 ILRA 407
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 614 of 2024

Manish Kumar ...Petitioner
Versus
G.M.
Personnel
Human
Resource
Management & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
Krishna Mohan Asthana

A. Practice and Procedure - Special appeal
-
Judicial
review
-
Scope
-
Reappreciation of evidence - Permissibility -
Held, this Court cannot sit in appeal and
cannot re-appreciate the evidence. The
scope of judicial review by this Court is
very limited when the appellant-petitioner
is in special appeal against the judgment
of learned Single Judge by which the writ
petition was dismissed while exercising
the powers under Article 226 of the
Constitution of India. (Para 9)

B. Practice and Procedure - Special appeal
- Scope - Point was not raised before writ
court - Permissibility to raise in Special
Appeal - Held, the point, which was not
raised before the Writ court, the same
cannot be raised in special appeal. (Para
17)

C. Service Law - Departmental enquiry -
Unauthorized absence from duty - Fact
regarding this charge was admitted during
departmental enquiry - Non-supply of
enquiry report
- Effect - Held, no
prejudice was caused to the appellant
even it is assumed that enquiry report was
not supplied to him - Admitted facts need
not be proved whereas in the present case
full-fledged enquiry had taken place in
accordance with law. (Para 17 and 18)

Special Appeal dismissed. (E-1)
408 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Managing Director, ECIL Vs B. Karunakar;
(1993) 4 SCC 727

2. S.K. Singh Vs Central Bank of India & ors.;
(1996) 6 SCC 415

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Siddharth
Khare, learned counsel for the appellantpetitioner and Sri K.M. Asthana, learned
counsel appearing for the respondent-Bank.

2. Present appeal has been filed
challenging the impugned judgement and
order dated 5.6.2024 passed by the learned
Single Judge in Writ-A No. 7405 of 2021
(Manish Kumar vs. Human Resource
Management & others).

3. The case of the appellant-petitioner,
as narrated in the order impugned herein, is
that the appellant-petitioner was appointed
on 17.11.2008 on the post of a Probationary
Officer (Assistant Manager) MMGS I with
the Syndicate Bank at Chennai. He got
promotion on 26.06.2014 to the post of
MMGS II. It is his case that on account of
promotion, he joined the City Center
Branch,
Gwalior.
He
worked
upto
19.03.2016 without any break in service.
He was transferred from time to time from
one city to another and across states. He
performed his duties honestly and with
devotion. He was last transferred to District
Etawah Branch on 16.09.2017, where he
was posted as an Assistant Manager. He
has worked for a total of 13 years without
any break in service. During this period of
time, his work and conduct have been well
regarded amongst the higher officials of the
Bank. He was transferred to the Syndicate
Branch, Etawah from Ahmedabad Main
Branch in the year 2017, but unfortunately,
due
to
what
the
appellant-petitioner
described as serious illness resulting from
his Diabetes etc., he was unable to perform
his duties regularly with effect from
22.11.2018. Due to his ailment, he did not
perform his duties and members of his
family gave medical certificates, along with
relevant documents of his treatment from
time to time to the Bank establishment. He
stated that after he was fit and discharged
from hospital, he produced a medical
certificate dated 05.06.2020 before the
Bank. It is then pointed out that on
05.06.2020, some dispute relating to
property between one Bhure Singh and the
appellant-petitioner erupted, which made
the appellant-petitioner lodge a First
Information Report against Bhurey Singh.
Bhurey
Singh,
as
a
measure
of
counterblast, lodged an FIR against the
appellant-petitioner. In connection with
Bhure Singh's the appellant-petitioner was
arrested on 12.06.2020. He was granted
bail by this Court on 10.11.2020 in the said
crime. While the appellant-petitioner was
in custody, he was suspended from service
due to the long period of his absence and
detention in custody. After release on bail,
the
appellant-petitioner
requested
the
respondents to revoke his suspension and
pay his salary. Instead, he was given a
charge-sheet
dated
10.03.2021.
After
service of the charge-sheet, he was deputed
as an Assistant Manager, Baghpat Regional
Office on 12.03.2021. He submitted a reply
to the charge-sheet on 14.03.2021. He
denied receipt of letters dated 16.03.2019
and 21.04.2019. The defence taken about
his
absence
from
22.11.2018
till
12.06.2020, while posted at the Etawah
branch of the Bank, was that he was
seriously ill and admitted to the Sir Ganga
Ram Hospital, Delhi. The Disciplinary
Authority appointed an Inquiry Officer to
1 All. Manish Kumar Vs. G.M. Personnel Human Resource Management & Ors.
409
hold inquiry. At the end of the inquiry, the
Inquiry Officer submitted a report, on the
basis of which, after issue of a show cause
notice to the appellant-petitioner, he was
removed from service by the Assistant
General
Manager,
Human
Resources
Management
Section,
Canara
Bank,
Lucknow.
The
appellant-petitioner
preferred an appeal to the Appellate
Authority on 10.04.2021. The appeal was
dismissed by the Appellate Authority, the
Deputy
General
Manager,
Human
Resources Management , Canara Bank,
Head Office, Bangalore, affirming the
Disciplinary Authority.

4. Aggrieved by the same, appellantpetitioner preferred a writ petition being
Writ-A No. 7405 of 2021 (Manish Kumar
vs. Human Resource Management &
others), which was dismissed by the
learned Single Judge vide impugned order
dated 5.6.2024. Hence the present appeal.

5. The grounds taken in the appeal is
that there exists no justification for
conducting the entire proceedings only on
22.3.2021 in a haste manner and the same
have been conducted in violation of
principles of Article 14 of the Constitution
in contravention of the 1976 Conduct and
Appeal Rule. It is submitted that sufficient
opportunity of hearing was not afforded to
the appellant for leading evidence in his
defence. It is further submitted that
appellant
was
neither
given
any
information with regard to enquiry report
nor copy of same was supplied to the
appellant-petitioner. It is submitted that the
Presenting Officer himself led documentary
evidence and testified as a witness on
behalf of the Management (M.W.1) to
prove the documents. It is submitted that
the learned Single Judge while passing the
impugned order has misconstrued the
grounds taken by the appellant-petitioner
and failed to appreciate that the Presenting
Officer was, in no manner, acquainted with
the documents which were sought to be
proved on his behalf. By drawing attention
to the attendance register, it was further
submitted that the attendance register
clearly reflects that the appellant-petitioner
was marked on leave by the Bank upto
6.6.2019 and was absent from 7.6.2019 and
therefore, the charge against the appellantpetitioner that he was unauthorizedly
absent from duties from 22.11.2018 to
12.6.2020 is incorrect.

6. Crux of the arguments of leaned
Senior Counsel appearing for the appellantpetitioner is threefold: firstly, preliminary
enquiry was conducted before lunch and on
the same day regular enquiry was also
conducted
after
noon,
therefore,
no
opportunity of hearing in the enquiry
proceedings was afforded to the appellantpetitioner, which is clear violation of
principles of natural justice and causes
serious
prejudice
to
the
appellantpetitioner;
secondly,
the
appellantpetitioner was never supplied copy of the
enquiry report. Attention was drawn to the
order of punishment dated 31.3.2021
annexed as Annexure-1 of the paper book
wherein it has been written that the enquiry
report was submitted on 25.3.2021 holding
the employee guilty of charges and the
employee has submitted his submissions on
the findings of the enquiry report vide letter
dated 23.3.2021, which is not possible,
although the same was received by the
authority
concerned
on
30.3.2021.
Submission is that it, is, therefore, proved
that the appellant-petitioner was in fact,
never supplied copy of the enquiry report
and therefore, the enquiry proceedings
stands vitiated. Third argument of learned
Senior Counsel, by drawing attention to the
410 INDIAN LAW REPORTS ALLAHABAD SERIES
attendance register annexed at page 163 of
the paper book, is that the appellantpetitioner was marked on leave by the Bank
upto 6.6.2019 and was shown absent only
from 7.6.2019 and therefore, absence of the
appellant-petitioner for a period of one and
half years is not proved, hence, the charge
is not proved.

7. Per contra, Sri K.M. Asthana,
learned counsel appearing for the Bank
submits
that
appellant-petitioner
was
initially appointed as Assistant Manager in
the then Syndicate Bank in the year 2008.
Subsequently, when the Syndicate Bank
was amalgamated into Canara Bank w.e.f.
1.4.2020,
services
of
the
appellantpetitioner stood absorbed in the transferee
Canara Bank and w.e.f. 1.4.2020 the
employees of Syndicate Bank including the
appellant-petitioner became the employee
of the Canara Bank. It is submitted that the
charge levelled against the appellantpetitioner is proved to the effect that he was
unauthorizedly absent from 22.11.2018 to
12.6.2020. It was pointed out that several
letters being letters dated 16.3.2019,
21.4.2019 and 19.11.2019 were issued to
the appellant-petitioner directing him to
report for duties immediately, failing which
necessary disciplinary action would be
initiated. It was pointed out that a
chargesheet dated 10.3.2021 was issued to
the appellant-petitioner, to which he
submitted
his
reply
dated
14.3.2021
wherein he has not denied the charges
levelled against him and only admission
was that he was not absent from duty
consciously w.e.f. 22.11.2018 till 12.6.2020
due to his illness for which he pleaded that
he was extremely sorry for this unpredicted
absence and assured that such mistake will
not be repeated in future. He also pointed
out that in fact preliminary hearing had
taken place before noon and regular
hearing had taken place after noon on
22.3.2021
and
enquiry
report
dated
25.3.2021 was duly supplied to the
appellant-petitioner, to which he submitted
his reply on 30.3.2021 although he had
deliberately mentioned wrong date of
23.3.2021 in his reply. It is also pointed out
that appellant-petitioner never denied his
unauthorized absence from 22.11.2018
while posted at Etawah Branch till
12.6.2020 and no proof to the contrary was
placed by him. He also pointed out that
during course of enquiry he produced
neither any documentary evidence nor any
witness in his support. It is submitted that
order
dated
31.3.2021
removing
the
appellant-petitioner from service passed by
the disciplinary authority, which shall not
be a disqualification for future employment
under Regulation 4 (I) of Canara Bank,
officer employee (Discipline and Appeal)
Regulation 1976 was put to challenge
under Regulation 17 of Regulation 1976
wherein also he had not denied his
unauthorized absence and on the contrary,
only pleaded 'circumstances under which it
was not possible to wait for sanction of
leave, such absence cannot be held to be
wilful' and Enquiry Officer held that the
absence was wilful. He pointed out that in
any case, even before the appellate
authority he only submitted that taking a
lenient view a lesser punishment be
awarded and thus, he has admitted his
unauthorized absence from duty. It was
also pointed out that he never claimed nonservice of enquiry report even before the
disciplinary authority or the appellate
authority. It was submitted that although reappreciation of evidence is not permissible
under Article 226 of the Constitution of
India as per settled law, however, as
learned Senior Counsel appearing for the
appellant-petitioner
has
placed
much
emphasis on the attendance register, it was
1 All. Manish Kumar Vs. G.M. Personnel Human Resource Management & Ors.
411
pointed out that even if it is assumed for the
sake of argument that the appellantpetitioner was not absent in the entire dates
even after reducing the period from
22.11.2018 to 6.6.2019 (6 months and 14
days), during which appellant-petitioner is
claiming that he was on leave, out of the
total period of unauthorized absence of one
and half years, the balance period during
which
the
appellant-petitioner
was
admittedly unauthorizedly absent comes to
12
months
and
5
days
and
thus,
unauthorized absence is admitted.

8. We have perused the record and
proceeded to consider the rival contentions
on merits.

9. It is the settled law that this Court
cannot sit in appeal and cannot reappreciate the evidence. The scope of
judicial review by this Court is very limited
when the appellant-petitioner is in special
appeal against the judgement of learned
Single Judge by which the writ petition was
dismissed while exercising the powers
under Article 226 of the Constitution of
India. We need not burden our judgement
by citing various judgements of Hon'ble
Apex Court as the law is too well settled.

10. However, as the arguments have
been raised on the grounds of flaw in
conducting the enquiry and non-supply of
enquiry report, we have gone through the
documents carefully. Admitted position as
emerges from the record is that the charge
against the appellant-petitioner is that he
was unauthorizedly absent from duty from
22.11.2018 to 12.6.2020. Charge against
the appellant-petitioner as quoted in the
impugned judgement clearly reflects that
the appellant-petitioner was detained in jail
on 13.6.2020 on account of impersonation
as Police and Raw Officer and was
suspended vide order dated 16.6.2020.
Although the charge of impersonation as
Police and Raw Officer is not the charge
levelled against the appellant-petitioner and
is not the subject of matter of the writ
petition, the same clearly reflects on the
character
of
the
appellant-petitioner
coupled with the fact that the record
reflects that on the earlier occasion also the
appellant-petitioner
was
awarded
punishment during service by the authority
concerned. Further admitted position is that
the appellant-petitioner was served with a
copy of the chargesheet and he submitted
his reply to the chargesheet. This fact is
also admitted to the appellant-petitioner
that in fact in the year 2019 he had attended
the preliminary departmental enquiry at
Lucknow syndicate bank, zonal office
Halwasia
Hazratganj
on
24.2.2019,
therefore, preliminary enquiry had taken
place.

11. We find that the learned Single
Judge has rightly observed that in fact it
was not the preliminary enquiry, but it was
the preliminary hearing that had taken
place on 22.3.2021 before lunch and
regular enquiry was conducted after lunch.
There is nothing on record which reflects
that regular enquiry was not conducted by
the authority concerned and admittedly, no
such objection was taken even before the
appellate authority. Further admitted fact
remains that during enquiry proceedings
the employee had never claimed either
before the Enquiry Officer or in his reply or
before the disciplinary authority or even in
the departmental appeal that he was on
leave for a certain period out of the total
period mentioned in the charge levelled
against him and only submission made by
the appellant-petitioner was that he could
not join duty due to his illness. It is also
admitted fact that without disputing his
412 INDIAN LAW REPORTS ALLAHABAD SERIES
unauthorized absence he had only pleaded
before the appellate authority that he may
be given lesser punishment. It is also not in
dispute that in the writ petition also before
this court except alleging his illness as a
reason of absence, it is nowhere asserted
that he was on leave. It is only by means of
filing
supplementary
affidavit
by
supplementing his claim, assertion has been
made that for a certain period from
22.11.2018 to 6.6.2019 he was on leave.

12. In this background, we find that
the first argument that has been raised by
the learned Senior Counsel for the
appellant-petitioner
is
not
sustainable.
Learned Single Judge has rightly observed
that preliminary hearing has taken place on
22.3.2021 before lunch and regular enquiry
was conducted after noon and this finding
requires no interference.

13. Insofar as the non-supply of
enquiry report is concerned, this prejudice
was never alleged before the appellate
authority and the same has also not been
alleged in categorical terms before the writ
court. This argument has been subsequently
developed only on the basis of date
mentioned in his reply submitted by the
appellant-petitioner by putting the date of
23.3.2021 and it was sought to be argued
that it was not possible to be a reply to the
enquiry report, which was submitted on
25.3.2021. It is not in dispute that this reply
allegedly dated 23.3.2021 was actually
received in the office on 30.3.2021. A bare
glance over the reply allegedly dated
23.3.2021 received by the office on
30.3.2021 at page 281 of the paper book
clearly reflects that assertion so made is
incorrect. In fact the appellant-petitioner
was supplied with enquiry report. A perusal
of the documents at page 281 of the paper
book annexed as annexure 1 to the
supplementary filed by the appellantpetitioner clearly reflects that the same is
addressed to the Disciplinary Authority &
Chief
Manager/Senior
Manager,
CO
Lucknow Canara Bank with the subject
'My written submission on inquiry dated
22.3.2021 in terms Chargesheet No. LC
HRM DP CHO CS 06 2021 dated
10.3.2021'. It is clear that he was in receipt
of
chargesheet
enquiry
report
dated
10.3.2021 and regular enquiry held on
22.3.2021 at Lucknow Canara Bank Circle
Office. The relevant extract is quoted as
under:

"The

Disciplinary Authority & Chief
Manager/Senior Manager

CO Lucknow Canara Bank

Respected Sir

SUB:
MY
WRITTEN
SUBMISSIONS
ON
INQUIRY
Dated:
22.03.2021 IN TERMS CHARGESHEET
No. LC HRM DP CHO CS 06 2021 DTD.
10.03.2021

I
am
in
receipt
of
your
Chargesheet Inquiry Report No. LC HRM
DP CHO CS 06 2021 DTD. 10.03.2021
and Regular Enquiry Held on 22.03.2021
at Lucknow Canara Bank Circle Office.

I humbly submit my submissions
as under:

Proving myself innocent I have
submitted my reply to the Chargesheet.

I have faced the Inquiry and
during inquiry it has come on record before
the Inquiry Forum that:"

 (emphasis supplied)

14. In the same reply, on the next page
he has accepted that he attended the
preliminary
departmental
inquiry
at
Lucknow syndicate bank zonal office
halwasia Hazratganj on 24.2.2019 and has
admitted that he had made reference to the
1 All. Manish Kumar Vs. G.M. Personnel Human Resource Management & Ors.
413
medical documents and submitted that he
was extremely sorry for this unpredicted
absence and assured that there will be no
such mistake in the future. Clear case of the
Bank authority is that in fact the appellantpetitioner was supplied enquiry report
along with letter dated 26.3.2021 and
receiving
of
the
aforesaid
letter
is
admittedly dated 30.3.2021. Therefore, we
do not find any good ground to interfere
with the finding recorded by the learned
Single Judge on this issue.

15. That apart, it is nowhere stated
either in the writ petition or even in the
grounds taken in special appeal as to what
prejudice was caused to the appellantpetitioner due to non-supply of enquiry
report. The law on this issue was settled by
by a Five-Judge Bench of Hon'ble Apex
Court in Managing Director, ECIL vs. B.
Karunakar, (1993) 4 SCC 727, paragraph
2 whereof is quoted as under:

"2. The basic question of law
which arises in these matters is whether the
report of the Inquiry Officer/authority
who/which is appointed by the disciplinary
authority to hold an inquiry into the
charges against the delinquent employee is
required to be furnished to the employee to
enable him to make proper representation
to the disciplinary authority before such
authority arrives at its own finding with
regard to the guilt or otherwise of the
employee and the punishment, if any, to be
awarded to him. This question in turn gives
rise to the following incidental questions:

(i) Whether the report should be
furnished to the employee even when the
statutory rules laying down the procedure
for holding the disciplinary inquiry are
silent on the subject or are against it?

(ii) Whether the report of the
Inquiry Officer is required to be furnished
to the delinquent employee even when the
punishment imposed is other than the
major punishment of dismissal, removal or
reduction in rank?

(iii) Whether the obligation to
furnish the report is only when the
employee asks for the same or whether it
exists even otherwise?

(iv) Whether the law laid down in
Mohd. Ramzan Khan, AIR 1991 SC 471
will
apply
to
all
establishmentsGovernment and non-Government, public
and private sector undertakings?

(v) What is the effect of the nonfurnishing of the report on the order of
punishment and what relief should be
granted to the employee in such cases?

(vi) From what date the law
requiring furnishing of the report should
come into operation?

(vii) Since the decision in Ramzan
Khan case (AIR 1991 SC 471) has made
the law laid down there prospective in
operation, i.e., applicable to the orders of
punishment passed after 20th November,
1990 on which day the said decision was
delivered, this question in turn also raises
another question, viz., what was the law
prevailing prior to 20th November, 1990?

16. The questions so framed have been
answered by Hon'ble Apex Court in
paragraph 30 of the said judgement, which
is quoted as under:

"30.
Hence
the
incidental
questions raised above may be answered as
follows:

(i) Since the denial of the report
of the Inquiry Officer is a denial of
reasonable opportunity and a breach of the
principles of natural justice, it follows that
the statutory rules, if any, which deny the
report to the employee are against the
principles of natural justice and, therefore,
414 INDIAN LAW REPORTS ALLAHABAD SERIES
invalid. The delinquent employee will,
therefore, be entitled to a copy of the report
even if the statutory rules do not permit the
furnishing of the report or are silent on the
subject.

(ii) The relevant portion of
Article 311(2) of the Constitution is as
follows:

"(2) No such person as aforesaid
shall be dismissed or removed or reduced
in rank except after an enquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges."

Thus
the
Article
makes
it
obligatory to hold an inquiry before the
employee is dismissed or removed or
reduced in rank. The Article, however,
cannot be construed to mean that it
prevents or prohibits the inquiry when
punishment other than that of dismissal,
removal or reduction in rank is awarded.
The procedure to be followed in awarding
other punishments is laid down in the
service rules governing the employee. What
is further, Article 311(2) applies only to
members of the civil services of the Union
or an all India service or a civil service of
a State or to the holders of the civil posts
under the Union or a State. In the matter of
all punishments both Government servants
and others are governed by their service
rules. Whenever, therefore, the service
rules contemplate an inquiry before a
punishment is awarded, and when the
Inquiry Officer is not the disciplinary
authority the delinquent employee will have
the right to receive the Inquiry Officer's
report notwithstanding the nature of the
punishment.

(iii) Since it is the right of the
employee to, have the report to defend
himself effectively, and he would not know
in advance whether the report is in his
favour or against him, it will not be proper
to construe his failure to ask for the report,
as the waiver of his right. Whether,
therefore, the employee asks for the, report
or not, the report has to be furnished to
him.

(iv) In the view that we have
taken, viz., that the right to make
representation to the disciplinary authority
against the findings recorded in the inquiry
report is an integral part of the opportunity
of defence against the charges and is a
breach of principles of natural justice to
deny the said right, it is only appropriate
that the law laid down in Mohd. Ramzan
Khan's case (AIR 1991 SC 471) (supra)
should
apply
to
employees
in
all
establishments whether Government or
non-Government, public or private. This
will be the case whether there are rules
governing the disciplinary proceeding or
not and whether they expressly prohibit the
furnishing of the copy of the report or are
silent on the subject. Whatever the nature
of punishment, further, whenever the rules
require an inquiry to be held, for inflicting
the punishment in question, the delinquent
employee should have the benefit of the
report of the Inquiry Officer before the
disciplinary authority records its findings
on the charges levelled against him. Hence
question (iv) is answered accordingly.

(v) The next question to be
answered is what is the effect on the order
of punishment when the report of the
Inquiry Officer is not furnished to the
employee and what relief should be
granted to him in such cases. The answer
to this question has to be relative to the
punishment awarded. When the employee
is dismissed or removed from service and
the inquiry is set aside because the report
is not furnished to him, in some cases the
non- furnishing of the report may have
prejudiced him gravely while in other
cases it may have made no difference to
1 All. Manish Kumar Vs. G.M. Personnel Human Resource Management & Ors.
415
the ultimate punishment awarded to him.
Hence to direct reinstatement of the
employee with back-wages in all cases is
to reduce the rules of justice to a
mechanical
ritual.
The
theory
of
reasonable opportunity and the principles
of natural justice have been evolved to
uphold the rule of law and to assist the
individual to vindicate his just rights. They
are not incantations to be invoked nor
rites to be performed on all and sundry
occasions. Whether in fact, prejudice has
been caused to the employee or not on
account of the denial to him of the report,
has to be considered on the facts and
circumstances of each case. Where,
therefore, even after the furnishing of the
report, no different consequence would
have followed, it would be a perversion of
justice to permit the employee to resume
duty and to get all the consequential
benefits. It amounts to rewarding the
dishonest and the guilty and thus to
stretching the concept of justice to
illogical
and
exasperating
limits.
It
amounts to a "unnatural expansion of
natural
justice"
which
in
itself
is
antithetical to justice."

17. Above quoted paragraph clearly
indicates that employee must establish as to
what prejudice has been caused due to nonsupply of the enquiry report, which was not
done in the present case. At the cost of
repetition, he may point out that this point
was not raised before the Writ court and as
per settled law it cannot be permitted to be
raised subsequently. Therefore, the same
cannot be raised in special appeal.
However, in the interest of justice, this
question was considered by us and we find
that once the unauthorized absence was
accepted by the appellant and only
explanation submitted was that it was due
to serious illness, he was absent and the
same will not be repeated in future and a
prayer for awarding lesser punishment was
made. Therefore, we find that in fact, no
prejudice was caused to the appellant even
it is assumed that enquiry report was not
supplied to him although the discussion
made hereinabove clearly reflects that the
appellant has submitted his reply after the
enquiry report.

18. In S.K. Singh vs. Central Bank
of India and others, (1996) 6 SCC 415,
similar argument was rejected on the
ground that the employee has not suffered
any prejudice due to non-supply of enquiry
report. In the present case also, the fact
remains that this ground was never raised
before the appellate authority and on the
contrary
unauthorized
absence
was
accepted
and
only
explanation
was
submitted that due to serious illness he was
extremely
sorry
for
this
unpredicted
absence and assured that this will not be
repeated in future and a prayer for
awarding lesser punishment was made.
Therefore, in fact he had accepted the
charge levelled against him and only
prayed for lesser punishment. It is the
settled law that admitted facts need not be
proved whereas in the present case fullfledged enquiry had taken place in
accordance with law. Therefore, second
argument of learned Senior Counsel that
due to non-supply of enquiry report the
proceedings
stood
vitiated
is
not
sustainable and is, accordingly, rejected.

19. Insofar as the third submission of
learned Senior Counsel for the appellantpetitioner that the he was in fact, on leave
granted by the Bank from 22.11.2018 to
6.6.2019 is concerned, as already noticed,
the appellant-petitioner has admitted during
the departmental enquiry that he was
unauthorizedly absent for this period due to
416 INDIAN LAW REPORTS ALLAHABAD SERIES
his illness and only prayed for lesser
punishment before the appellate authority.
Still, even if for the sake of argument that
period is excluded, undisputedly, the period
of admitted unauthorized absence comes to
12 months and 5 days, for which absolutely
no explanation has been offered by the
appellant-petitioner.

20. That apart, it is the settled law that
highest degree of devotion, integrity and
discipline is required for those who are in
bank service. A reference may be made to
the judgement of Hon'ble Apex Court in
Canara Bank vs. V.K. Awasthy, 2005 AIR
SCW 2005. The appellant-petitioner has
clearly admitted in his reply before the
appellate authority at page 138 of the paper
book that he was detained in jail on
13.6.2020 on account of impersonation as
Police and Raw Officer. It has also come
on record (paragraph 6 of the counter
affidavit filed by the Bank) that earlier also
he was punished and awarded punishment
of reduction to a lower grade/scale 2 to 1
by the erstwhile syndicate bank.

21. Therefore, we do not find any legal
infirmity in the order impugned herein.

22. Present special appeal is devoid of
merit and is accordingly dismissed.
----------
(2025) 1 ILRA 416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 1049 of 2024

Nand Kishor Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Alok Singh

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

Service Law-Model Conduct, Discipline
and Appeal Rules for Services of U.P. St.
Enterprises Regulations-Rule 39 & 48---
After
the
retirement
of
the
petitioner
impugned
order
has
been
passed
for
recovering of a certain amount from the
petitioner---In view of the undertaking that
had been given by the petitioner authorising
the respondents for recovering the amount
from his dues in case any erroneous pay
fixation was found and that the respondents
in the order impugned having indicated that
the amount of Rs.3,23,756/- is towards the
erroneous pay fixation that had been done by
the petitioner himself, consequently, no error
is found in the order impugned dated
13.10.2023 so far as it pertains to recovering
of an amount of Rs.3,23,756/- from the retiral
dues of the petitioner--- So far as the
recovery of Rs.2,29,651.29/- is concerned
once the amendment in Rule 39 is read with
Rule 48 of the Regulations, it clearly emerges
that the said amendment of making recovery
from a retired employee has only come into
force w.e.f. 10.10.2022 and the instant case,
the petitioner having retired at an earlier
stretch of time i.e. 30.11.2021, would not be
covered or governed by the said amendment
whereby the Corporation has armed itself of
making recovery after due proceedings from a
retired
employee---Recovery
of
Rs.2,29,651.29/-
from
the
petitioner,
is
quashed. (Para 20, 28 & 30)

Petition partly allowed. (E-15)

List of Cases cited:

1. St. of Pun. & ors. Vs Rafiq Masih (White
Washer) & ors. 2015 (4) SCC 334

2. High Court of Punjab & Haryana & ors. Vs
Jagdev Singh 2016 (14) SCC 267

(Delivered by Hon'ble Abdul Moin, J.)