# Masood Ahmad Khan v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ A No. 10788 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/masood-ahmad-khan-v-state-of-u-p-ors-49446
- **Pages:** 9

## Headnote

Law
-
Suspension
Order
-
Jurisdiction to Initiate Fresh Inquiry -
Manipulation of Date of Birth - Prior
Termination Order Quashed - Effect of
Absence of Liberty to Proceed Afresh
The petitioner challenged a suspension order
dated 21.06.2023 passed by the Chairman,
Nagar Palika Parishad, Nethaur, Bijnor, pending
a departmental inquiry into allegations of
manipulating his date of birth in the service
book. The petitioner's earlier termination order
dated 16.09.2019, based on similar allegations,
was quashed by the High Court on 05.11.2019
in Writ - A No. 15338 of 2019, for lack of
departmental inquiry and on the finding that
there was no cutting or overwriting in the
petitioner's
service
book.
The
petitioner
contended
that
the
respondents
lacked
jurisdiction to initiate fresh proceedings on the
same charge, as no liberty was granted to
proceed afresh.

Held: The High Court's earlier order quashing
the termination was primarily due to the
absence of a departmental inquiry and reliance
on an unauthorized report, not an adjudication
on the merits of the charge. The observation
that there was no cutting or overwriting in the
service book did not preclude a fresh inquiry
into whether the petitioner manipulated his date
of birth in another manner, as the charge was
based on a discrepancy between educational
records (showing 25.05.1957) and the service
book (showing 25.05.1965). The absence of
express liberty to proceed afresh did not bar the
respondents
from
initiating
disciplinary
proceedings, as per the principles laid down in
Devendra Pratap Narain Rai Sharma Vs St. of
U.P. (AIR 1962 SC 1334). The suspension order
was upheld, but the inquiry was directed to be
concluded within three months, with the
petitioner entitled to subsistence allowance
during suspension. The issue of manipulation by
cutting or overwriting was held to be closed, but
other forms of manipulation could be inquired
into, subject to evidence. The plea that the
Lokayukta's recommendations barred judicial
review under Section 17(2) of the U.P.
Lokayukta Act, 1975, was rejected, as it does
not apply to the High Court's jurisdiction under
Article 226 of the Constitution.

Writ Petition Disposed of.
Case Law Discussed:

## Text

310 INDIAN LAW REPORTS ALLAHABAD SERIES
made in administrative exigency and not
being made to vindicate their activism or
the transfer is made in malafide manner.

58. In this case, the petitioner could
not place any document or evidence to
show that the transfer was made in
malafide manner just to vindicate activism
of petitioner no.2. On the contrary, it was
petitioner no.2 misusing his post as General
Secretary of the Union in order to push his
personal agenda, had filed a number of
cases/complaints before different forums
which is just to put pressure on the
respondents to ensure that his transfer is set
aside. As General Secretary of Trade
Union, he is supposed to be the voice of the
employees and should not use his post for
his personal gain.

59. On perusal of documents filed
along with the present writ petition, it
transpires that to stop one transfer of
petitioner no.2, the entire Trade Union as
well as petitioner no.2 himself has filed 4-5
different proceedings. Such act of petitioner
no.2 is nothing but pure abuse of process of
law, for his personal reasons. In fact, to
stop transfer of an employee, a notice for
strike was called by the petitioner-Union,
which could cripple the banking system of
respondent-Bank. The petitioners had gone
ahead and filed a complaint against the
bank before the Industrial Tribunal under
Section 33A of the Act. Further, on their
behest a criminal case has been instituted
against the officers of the bank before the
Chief Metropolitan Magistrate, Kanpur
Nagar. The act of the petitioners was in no
way justified and ended up in multiplicity
of litigations in various forums. No trade
union activist can use his position to push
his personal agenda. The entire action of
the petitioners was nothing but pure abuse
of process of law.

60. The transfer of petitioner no.2 was
not a sole transfer but was done along with
other employees of the bank. It is a trite
law that the Court should not interfere with
the transfer orders, which are made in
administrative reasons, and no Court
should interfere unless the transfer is
malafide or is made in violation of any
statutory provisions. Petitioner no.2 has no
legal or statutory right to claim his posting
at a particular place. The wheels of
administration should be allowed to run
smoothly and the Courts or Tribunals are
not expected to interdict the working of the
administrative system. In this case, the
transfer
was
made
purely
on
the
administrative ground and hence, the same
cannot be interfered with.

61. The impugned award passed by
respondent no.1 i.e. Tribunal is perfectly
justified and the transfer of petitioner no.2,
which has been made on administrative
exigency, cannot be interfered with and,
accordingly, the writ petition is dismissed.
----------
(2023) 11 ILRA 310
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023
BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 10788 of 2023

Masood Ahmad Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Kauntey Singh, Sri
Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Manas Bhargava, Sri Nipun
Singh
11 All. Masood Ahmad Khan Vs. State of U.P. & Ors.
311
Service
Law
-
Suspension
Order
-
Jurisdiction to Initiate Fresh Inquiry -
Manipulation of Date of Birth - Prior
Termination Order Quashed - Effect of
Absence of Liberty to Proceed Afresh
The petitioner challenged a suspension order
dated 21.06.2023 passed by the Chairman,
Nagar Palika Parishad, Nethaur, Bijnor, pending
a departmental inquiry into allegations of
manipulating his date of birth in the service
book. The petitioner's earlier termination order
dated 16.09.2019, based on similar allegations,
was quashed by the High Court on 05.11.2019
in Writ - A No. 15338 of 2019, for lack of
departmental inquiry and on the finding that
there was no cutting or overwriting in the
petitioner's
service
book.
The
petitioner
contended
that
the
respondents
lacked
jurisdiction to initiate fresh proceedings on the
same charge, as no liberty was granted to
proceed afresh.

Held: The High Court's earlier order quashing
the termination was primarily due to the
absence of a departmental inquiry and reliance
on an unauthorized report, not an adjudication
on the merits of the charge. The observation
that there was no cutting or overwriting in the
service book did not preclude a fresh inquiry
into whether the petitioner manipulated his date
of birth in another manner, as the charge was
based on a discrepancy between educational
records (showing 25.05.1957) and the service
book (showing 25.05.1965). The absence of
express liberty to proceed afresh did not bar the
respondents
from
initiating
disciplinary
proceedings, as per the principles laid down in
Devendra Pratap Narain Rai Sharma Vs St. of
U.P. (AIR 1962 SC 1334). The suspension order
was upheld, but the inquiry was directed to be
concluded within three months, with the
petitioner entitled to subsistence allowance
during suspension. The issue of manipulation by
cutting or overwriting was held to be closed, but
other forms of manipulation could be inquired
into, subject to evidence. The plea that the
Lokayukta's recommendations barred judicial
review under Section 17(2) of the U.P.
Lokayukta Act, 1975, was rejected, as it does
not apply to the High Court's jurisdiction under
Article 226 of the Constitution.

Writ Petition Disposed of.
Case Law Discussed:

1. Devendra Pratap Narain Rai Sharma Vs St. of
U.P., AIR 1962 SC 1334

2. Dwarkachand Vs St. of Raj., ILR (1957) Raj
1049

3. Kanak Chandra Bairagi Vs Supdt. of Police,
Sibsagar, ILR (1955) Assam 191

4. Mohan Singh Chaudhary Vs Divisional
Personnel Officer, Northern Railway, Ferozepore
Cantt., ILR (1957) Pun 1833

(Delivered by Hon'ble J.J. Munir, J.)

This writ petition is directed against an
order of suspension from service pending
inquiry dated 21.06.2023 passed against the
petitioner by the Chairman, Nagar Palika
Parishad, Nethaur, District Bijnor.

2. In order to set the record straight, it
is observed at the outset that the petitioner
had mistakenly filed, along with the writ
petition, a copy of the suspension order
relating to another employee, also dated
21.06.2023, in place of the impugned
suspension order. This was the result of a
clerical error and the error being technical,
was permitted to be rectified by bringing on
record a copy of the impugned order
(relating to the petitioner) vide order dated
17.07.2023. The said order has been
brought on record through a supplementary
affidavit dated 18.07.2021.

3. Heard Mr. Ashok Khare, learned
Senior Advocate assisted by Mr. Kauntey
Singh, learned Counsel for the petitioner,
Ms. Monika Arya, learned Additional Chief
Standing Counsel on behalf of respondent
Nos. 3 & 4 and Mr. Manas Bhargava,
learned
Counsel
representing
the
Lokayukta, Uttar Pradesh.
312 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The submission of Mr. Ashok
Khare, learned Senior Advocate is that the
impugned order, ordering suspension and
initiation of departmental proceedings
passed by the Chairman, Nagar Palika
Parishad, Nethaur, Bijnor is without
jurisdiction, because on identical grounds,
the services of the petitioner had earlier
been terminated by the Chairman, Nagar
Palika Parishad, Nethaur, Bijnor vide an
order of 16th September, 2019, which was
quashed by this Court on ground that no
departmental inquiry was held, and further
that there was no cutting or overwriting
regarding the petitioner's date of birth
entered in his service book, as evident from
an extract of the service book brought on
record with the counter affidavit. It is
pointed out by Mr. Khare that this Court
not
only
quashed
the
earlier
order
terminating the petitioner's services, but
also recorded a finding that there is no
cutting or overwriting evident from the
extract of the petitioner's service book
brought on record along with the counter
affidavit. On the foot of this fact, it is urged
by the learned Senior Advocate that this
Court proceeded to quash the order dated
16.09.2019 terminating the petitioner's
services not only on ground of denial of
opportunity or the absence of an inquiry
being held against him, but also on the
basis of a finding about the charge that in
the extract of the service book brought on
record by the respondent themselves, there
is no cutting or overwriting to be found
about the petitioner's date of birth. This
Court, by the judgment and order dated
05.11.2019 passed in Writ - A No. 15338 of
2019, quashed the order dated 16.09.2019,
terminating the petitioner's services and
directed
his
reinstatement,
with
all
consequential benefits. It is urged that no
liberty was granted to the respondent-Nagar
Palika Parishad to proceed afresh on the
same
charge
against
the
petitioner.
Therefore, according to Mr. Khare, there is
no jurisdiction with the respondents to
place the petitioner under suspension and
proceed against him on the same charge of
manipulating his date of birth in the service
book.

5. It appears that the present order of
suspension is a sequel to a report dated
24.03.2023 submitted by the Lokayukta of
Uttar Pradesh to the State Government on a
complaint made by one Wasiuddin against
Smt. Firoza Khatoon, the Chairman, Nagar
Palika
Parishad,
Nethaur,
Bijnor,
Dharmdev, the Executive Officer of the
aforesaid Nagar Palika Parishad, the
petitioner
-
Mansoor
Ahmad
Khan,
Ghanshyam Singh, Tax Amin and Shabina
Anjum, a Peon with the Nagar Palika
Parishad. The findings of the Lokayukta at
page no. 53 of the Paper Book, relating to
the petitioner, carried in paragraph No. 11
(iii), read to the following effect :

iii- श्री मसूि अहमि के शैक्षनर्क अनभिेख व
सेवा अनभिेख में अंनकि जन्मनिनथ में स्पष्ट रूप से िगभग 08 वर्द
का अन्िर होिे के कारर् उिकी सेवाएं नििांक 16.09.2019 को
समाप्त की गयी। माििीय उच्च न्यायािय द्वारा ररट यानचका संख्या-
15338/2019 में पाररि आिेश नििांनकि 05.11.2019
द्वारा सेवा समानप्त संबंनिि आिेश नििांनकि 16.09.2019
अपास्ि नकये जािे के कारर् श्री मसूि अहमि, निनपक को सवेिि
सभी पररर्ानमि िाभों के साथ नििांक 19.11.2019 को
आरोपी िोक सेवक श्रीमिी निरोजा खािूि द्वारा बहाि नकया गया।
माििीय उच्च न्यायािय के आिेश नििांनकि 05.11.2019 के
नवरूद्ध आरोपी िोक सेवक श्रीमिी निरोजा खािूि द्वारा कोई अपीि
प्रस्िुि ि करिा िथा ित्काि श्री मसूि अहमि को समस्ि िाभ के
साथ बहाि करिा यह प्रिनशदि करिा है नक आरोपी िोक सेवक
द्वारा अपिे पिीय िानयत्व का निवदहि शुद्ध अन्िःकरर् से ईमाििारी
व निष्ठापूवदक िहीं नकया गया है।

6. The order dated 16.09.2019 passed
by the Chairman, Nagar Palika Parishad,
11 All. Masood Ahmad Khan Vs. State of U.P. & Ors.
313
Nethaur, Bijnor shows that in fact, it is not
an order of termination of services. It is an
order ceasing the petitioner's services on
the ground that he had already crossed the
age of superannuation. The order of 16th
September, 2019 was passed on the basis of
recommendations of a committee set up by
the District Magistrate, Bijnor to examine
Wasiuddin's complaint that the petitioner's
date
of
birth
was
manipulated
and
incorrect, that he had managed to show
wrongly in his service records. The
committee appointed by
the
District
Magistrate had returned a finding that the
petitioner's date of birth in his school
records
i.e.
Madarsa
Islamia Arabia
Mohalla Bandukchiyan, Kasba Dhampur
relating to Class V, showed his date of birth
to be 25.05.1957. This finding was
recorded by the aforesaid committee on the
basis of a report by the headmaster of the
aforesaid Madarsa dated 25.07.2019. It was
mentioned there that the petitioner had
passed his Class V from the said Madarsa.
It appears that the Additional District
Magistrate (Administration) Bijnor, acting
on behalf of the District Magistrate, Bijnor,
addressed a memo dated 03.09.2019,
asking the Chairman that the petitioner
ought to have retired on 31.05.2017, going
by his date of birth found by the committee
appointed by him, and yet he was
continuing in service, illegally drawing on
the State exchequer. The Chairman, as
would appear from the order dated
16.09.2019, without holding any kind of an
inquiry
or
instituting
disciplinary
proceedings against the petitioner, acted on
the communication of the Additional
District Magistrate (Administration) Bijnor
dated 03.09.2019, and ordered that the
petitioner's services would end with
immediate effect, as he had crossed the age
of superannuation on 31.05.2017. It was
also directed that salary drawn after the
said
date
would
be
calculated
and
recovered from the petitioner's post-retiral
benefits. A perusal of the order passed by
this Court on 05.11.2019 in Writ - A No.
15338 of 2019 would show that this Court
was of opinion that the order determining
petitioner's services could not have been
passed without the Nagar Palika Parishad
holding an inquiry, and merely acting on
the communication dated 03.09.2019 from
the
Additional
District
Magistrate
(Administration) Bijnor, addressed to the
Executive Officer. The relevant findings of
this Court read :

To this submission, no plausible
objection could be taken by Sri Manu
Saxena learned counsel for the respondentNagar Palika Parishad. He has placed
reliance on the alleged report of the
Principal which finds reference in the
communication dated 03.09.2019 sent by
the
Additional
District
Magistrate
(Administration), Bijnor to the Executive
Officer,
Nagar
Palika
Parishad.
The
documents appended as Annexure C.A.
No.1 to C.A. No.4 (pages 11 to 22) of the
counter
affidavit
are
the
documents
appended by the complainant in his
complaint. None of the documents are
record of enquiry made at the ends of the
Nagar Palika Parishad. The reliance placed
on the letter of the Principal dated
15.03.2019 appended at page no.'18' of the
paper book is misplaced as the said letter
has been issued to one Wasiuddin under the
Right to Information Act' 2005.

It is further relevant to note that
the extract of the service book appended as
Annexure No.C.A. '5' makes it clear that
the date of birth of the petitioner entered
therein is 25.05.1965. The assertion of the
petitioner that there is no cutting or
overwriting in the service book of the
petitioner is substantiated from the extract
314 INDIAN LAW REPORTS ALLAHABAD SERIES
of the service book brought on record with
the counter affidavit. In absence of any
departmental
enquiry
into
the
said
complaint made at the ends of the Nagar
Palika Parishad, the order of cancellation of
appointment of the petitioner passed by the
Chairman,
Nagar
Palika
Parishad,
Nahtaura,
Bijnor,
based
on
the
communication dated 03.09.2019 by the
Additional
District
Magistrate
(Administration),
Bijnor
cannot
be
sustained.

The office order dated 16.09.2019
passed by the Chairman, Nagar Palika
Parishad,
Nahtaur,
Bijnor
is
hereby
quashed.
The
communication
dated
03.09.2019 cannot be made basis for
terminating the services of the petitioner
and the same is liable to be ignored as such.

7. It is, no doubt, true that this Court
quashed
the
order
dated
16.09.2019
dispensing with the petitioner's service on
ground that he had already crossed the age
of superannuation, which, in turn, is based
on a case that he manipulated his date of
birth in the service record. It is also true
that the order of this Court carries a remark
that a perusal of the extract of the service
book, appended as C.A. 5 to the counter
affidavit, indicates the petitioner's date of
birth to be 25.05.1965, and further that the
petitioner's assertion, that there is no
cutting or overwriting in his service book,
is substantiated on a perusal of the record
annexed to the counter affidavit. The order,
in substance, however, proceeds on the
basis that without the Nagar Palika
Parishad holding an inquiry to determine
the petitioner's services, it could not be
done acting on the communication dated
03.09.2019 from the Additional District
Magistrate (Administration). It is also trite
to say that this Court did not expressly
grant permission to the Nagar Palika
Parishad to proceed against the petitioner
afresh. Now, the submission of the learned
Senior Advocate for the petitioner, that the
effect of the findings recorded by this Court
in the judgment and order dated 05.11.2019
leaves the Nagar Palika Parishad with no
jurisdiction
to
proceed
against
the
petitioner, in their disciplinary jurisdiction,
does not appear to be correct. The reason is
that this Court essentially disapproved the
movement order given to the petitioner by
the Nagar Palika Parishad on the basis of
an inquiry held by the District Magistrate's
office and the communication from the
Additional District Magistrate, without the
Nagar Palika Parishad themselves holding
an inquiry in the matter. Certainly, the
Nagar Palika Parishad, Nethaur, Bijnor are
the petitioner's employers and before
taking a decision in the matter, if the
petitioner had manipulated his date of birth
in his service records, they ought to have
held an inquiry. They could have held an
inquiry
simplicitor
to
determine
the
petitioner's date of birth, but more
logically,
it
had
to
be
disciplinary
proceedings, because there was not just the
question what the petitioner's date of birth
is; it involved an allegation that the
petitioner had manipulated his date of birth
in the service records to his advantage.

8. The remark in this Court's order
dated 05.11.2019 that Mr. Khare has
emphasized much, to the effect that there is
no 'cutting' or 'overwriting' in the
petitioner's service book, as appears from
the extract of the service book brought on
record with the counter affidavit filed by
the respondent in Writ - A No. 15338 of
2019, in the opinion of this Court, does not
close all avenues of inquiry. The reason is
that the charge against the petitioner
appears to be based on the petitioner's
educational records from the Madarsa
11 All. Masood Ahmad Khan Vs. State of U.P. & Ors.
315
where
he
had
studied,
prima
facie
evidencing his date of birth, on a
certification
by
its
Headmaster,
as
25.05.1957, that had been manipulated and
entered in the service book instead, as
25.05.1965. The manipulation could be
done by the petitioner by 'scoring off' or
'overwriting' or in some other manner,
particularly, as he had charge of all the
service
records,
including
his
own.
Therefore, to infer from the remarks of this
Court in the judgment that the factum of
there being no 'cutting' or 'overwriting' in
the extract of a copy of the service book
gives a quietus to the issue, would be
flawed reasoning. This Court's order dated
05.11.2019 cannot be held to exclude the
scope of any inquiry being undertaken by
the Nagar Palika Parishad in its disciplinary
jurisdiction to determine whether the
petitioner had, indeed, manipulated and
caused an incorrect date of birth to be
entered in his service records.

9. The other contention advanced by
Mr. Khare, that once this Court had
declined to grant liberty to the Nagar Palika
Parishad to proceed in the matter afresh,
there is no scope for any further inquiry or
disciplinary
proceedings
being
taken
against the petitioner with regard to the
allegation/charge of manipulating his date
of birth in his service records, also does not
appear to be well-founded. Reference in
this connection may be made to the
decision
of
the
Supreme
Court
in
Devendra Pratap Narain Rai Sharma v.
State of U.P. and others1. In that case, the
appellant before the Supreme Court was an
Inspector-Qanungo
in
the
Revenue
Department of the State of Uttar Pradesh.
By an order dated 21.04.1952, he was
placed under suspension pending inquiry
into certain charges by the Collector. In
June, 1952, the Collector recommended to
the Land Reforms Commissioner that the
appellant be reverted to the post of Naib
Tehsildar.
The
Commissioner
further
recommended to the State Government that
the appellant be dismissed from service.
The State Government dismissed the
appellant from service by an order of 16th
September, 1953. The appellant brought a
suit in the Court of the Civil Judge,
Lucknow, challenging the validity of the
order of dismissal, primarily on ground that
he was denied an opportunity of hearing
and showing cause. The Trial Judge
dismissed the suit, but this Court, on
appeal, reversed the decree. This Court held
that
reasonable
opportunity
was
not
afforded to the appellant, either before the
recommendation
was
made
for
the
imposition of penalty or before the
infliction of punishment. The action was,
therefore, violative of Article 311 of the
Constitution of India. This Court, therefore,
granted a declaration that the appellant's
dismissal
from
service
was
void,
inoperative and illegal, and the appellant
must be deemed to be continuing in
service. The appellant was reinstated to his
original post on 30.03.1959 The appellant,
upon
reinstatement,
applied
to
the
Accountant General for payment of salary
and allowances due to him. The Accountant
General informed the appellant that he was
entitled to draw pay and allowances with
effect from the date of his reinstatement.
The appellant's claim for arrears of pay and
allowances for the period 21.04.1952 to
28.04.1959 was referred to the State
Government, who would decide about the
terms and conditions of the appellant's
reinstatement. The Accountant General,
accordingly, informed the appellant that
action would be taken on receipt of
instructions from the State. The appellant
was, again, suspended vide an order dated
11.07.1959 issued by the Board of
316 INDIAN LAW REPORTS ALLAHABAD SERIES
Revenue. The appellant was denied salary
for the period that he remained out of
service, but held entitled to subsistence
allowance alone. It was, however, provided
that the period that he remained out of
service will be time during which he would
earn ₹1/- per month as token pay, and that
the said period would be treated as one
spent on duty for the purpose of pension.
The appellant, on occasion, challenged the
order
placing
him
under
suspension
pending inquiry afresh and the order
directing inquiry as well, regarding the
charges while posted at Garautha, District
Jhansi through a writ petition. He also
prayed for a direction that his full salary be
paid. This Court held that the inquiry was
not barred, though the order fixing the
petitioner's salary at ₹1/- per month by the
Board of Revenue for the period of time
that he remained out of service was
quashed, with a direction for consideration
of the matter afresh, in the light of relevant
rules, after hearing the petitioner.

10. On appeal to the Supreme Court,
it was held by their Lordships in Devendra
Pratap Narain Rai Sharma (supra) :

7.
In
our
view,
the
State
Government was competent to direct a
fresh enquiry against the appellant for
dereliction of duty even if such dereliction
was in the period relating to which
proceedings were previously started and the
appellant had been dismissed from service.
The appellant was not in the earlier
proceedings exonerated by the High Court
in respect of the alleged misconduct
charged against him, and, in any event,
charge against him in the second enquiry
was different from the charge in the first
enquiry. The High Court had in the suit
challenging the order passed in the first
enquiry expressly observed that on the
question
as
to
misconduct
and
the
punishment, no opinion was expressed. The
suit filed by the appellant was decreed only
on the ground that he had not been afforded
a reasonable opportunity of showing cause
against the charge against him and also the
punishment decided to be imposed upon
him.

8. Authorities on which reliance
was placed by counsel for the appellants,
namely,
Dwarkachand
v.
State
of
Rajasthan[ILR (1957) Raj 1049] , Kanak
Chandra Bairagi v. Supdt. of Police,
Sibsagar [ILR (1955) Assam 191] and
Mohan
Singh
Chaudhariv.
Divisional
Personnel
Officer,
Northern
Railway,
Ferozepore Cantt. [ILR (1957) Pub 1833] ,
do not support the plea that the second
enquiry is, in the circumstances of the case,
barred. An adjudication on the merits by a
quasi-judicial body may or may not debar
commencement of another enquiry in
respect of the same subject-matter. But in
this case we are concerned with the scope
of the High Court order. The binding effect
of a judgment depends not upon any
technical consideration of form, but of
substance. The High Court in the appeal
filed by the appellant in Suit No. 163 of
1954 did not exonerate the appellant from
the charges. The High Court decreed the
suit on the ground that the procedure for
imposing the penalty was irregular, and
such a decision cannot prevent the State
from commencing another enquiry in
respect
of
the
same
subject-matter
consistently with the provision of Articles
310 and 311. In Dwarkachand case in a
previous
enquiry
the
public
servant
concerned had been exonerated; and in
Mohan Singh Chaudhari case [ILR (1957)
Pub 1833] a decision by the civil court
declaring illegal an order dismissing a
public servant by an officer not authorised
in that behalf was held binding on all the
11 All. Masood Ahmad Khan Vs. State of U.P. & Ors.
317
parties in proceedings under Article 226 till
such decision was set aside in accordance
with law. In Kanak Chandra case [ILR
(1955) Assam 191] it was held that an order
in exercise of powers of revision by the
Governor under the authority reserved to
him setting aside an order of censure
passed by a subordinate authority and
dismissing the public servant concerned
from service did not amount to a second
departmental enquiry. These cases do not
lend support to the proposition that after an
order passed, in an enquiry against a public
servant imposing a penalty is quashed, by a
civil court, no further proceeding can be
commenced against him even if in the
proceeding in which the order quashing the
enquiry was passed, the merits of the
charge against the public servant concerned
were never investigated.

9. If the State Government was
competent to order a fresh enquiry, we see
no reason why it would be incompetent to
direct suspension of the appellant during
the pendency of the enquiry.

11. No doubt, Devendra Pratap
Narain Rai Sharma is a case where the
order had been quashed, because the Court
had set aside the dismissal order on ground
of denial of opportunity and non holding of
inquiry. There was no adjudication on
merits. But, what is relevant are that the
remarks of their Lordships to the effect that
'an adjudication on merits by a quasijudicial body' may or may not debar
commencement of another inquiry in
respect of the same subject matter. The
question here is, if the remarks of this
Court that there was no 'cutting' or
'overwriting' in the service book of the
petitioner, based on a perusal of the extract
of service book brought on record with the
counter affidavit, exhausts the entire scope
of the charge against the petitioner. As
already said, the charge against the
petitioner is about manipulating his date of
birth in his service records, which is
founded on a comparison of the date of
birth in his service book and that in his
school
certificate.
Apparently,
the
manipulation need not necessarily come
about as a result of any scoring out or
overwriting of the date of birth in his
service book by the petitioner. The
petitioner's date of birth could have been
recorded by a manipulation done otherwise
than through 'cutting' or 'overwriting'.
Interestingly, in this case, the order that was
quashed by this Court did not come about
on the basis of proceedings drawn by the
Nagar Palika Parishad, which may reflect
with precision the manner in which the
petitioner is said to have manipulated his
date of birth in his service records, when
action was taken earlier.

12. Now, from a perusal of the
suspension order and the remarks of the
Lokayukta, it appears that the charge has
stemmed from a difference between the
petitioner's date of birth by as much as
eight years between that recorded in his
service book and the one in his educational
certificates. In view of these facts, the fact
that this Court did not grant liberty to
proceed afresh against the petitioner while
quashing the order on ground of denial of
opportunity and acting on an unauthorized
report, together with a remark that there
was no manipulation by 'cutting' or
'overwriting' in the service book, in the
opinion of this Court, would not at all debar
the Nagar Palika Parishad from proceeding
afresh in their disciplinary jurisdiction to
inquire into the charge whether, indeed, the
petitioner has manipulated his date of birth
in his service book. Of course, the charge
would have to be clear in its terms and
cannot be about the manipulation being
318 INDIAN LAW REPORTS ALLAHABAD SERIES
done through 'overwriting' or 'cutting', a
fact upon which this Court has pronounced
with finality. The manipulation done in any
other fashion would be open to inquiry,
strictly in accordance with law, where the
Nagar Palika Parishad would have to
establish the charge against the petitioner
by evidence led before the Inquiry Officer.

13. It is made clear that nothing said
in this order would be construed as an
expression on merits, regarding the validity
or worth of the charge, either way, and the
Inquiry Officer would be free to determine
the charge on the basis of evidence led
before him. Of course, as already said, the
issue of 'scoring out' or 'overwriting' the
petitioner's date of birth in the service book
shall not be inquired into.

14. Before parting with this matter, it
must be mentioned that it was urged by Mr.
Manas Bhargava, learned Counsel for the
Lokayukta, on instructions received, that
the impugned order being one passed
pursuant to recommendations by the
Lokayukta, cannot be questioned before
this Court, in view of the provisions of
Section 17(2) of the Uttar Pradesh
Lokayukta and Up-Lokayuktas Act, 19752,
which read :

17(2) No proceedings of the
Lokayukta or the Up-Lokayukta shall be
held bad for want of form and except on the
ground of jurisdiction, no proceedings or
decision of the Lokayukta or the UpLokayukta shall be liable to be challenged,
reviewed or quashed or called in question
in any Court.

15. This Court must remark that the
Lokayukta functions under the Act of 1975.
The reference in Section 17(2) excluding
the jurisdiction of the Court to review or
quash the order of Lokayukta or UpLokayukta,
except
on
ground
of
jurisdiction, cannot be pleaded as a bar to
this Court's jurisdiction under Article 226
of the Constitution. The reference to
'Court' or bar to the Court's jurisdiction
under Section 17(2) of the Act would
apply to Courts of ordinary jurisdiction;
not the High Court exercising its writ
jurisdiction under Article 226 of the
Constitution.

16. In the result, this Court holds that
there is no good ground to interfere with
the impugned order, but directs that the
inquiry against the petitioner be concluded
within a period of three months hence,
wherein the petitioner shall cooperate.
The petitioner, during the period of
suspension, shall be paid his subsistence
allowance regularly. In the event of delay
in
concluding
the
disciplinary
proceedings beyond the period of three
months, it would be open to the petitioner
to move this Court again, questioning his
continued suspension from service on the
ground of delay.

17. This writ petition stands disposed
of in terms of the orders aforesaid.

18. There shall be no order as to costs.
----------
(2023) 11 ILRA 318
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2023
BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 19776 of 2019

Babita Thakur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents