# Mayank Babu Agrawal v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 563
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-23
- **Case number:** Writ A No. 26849 of 2018
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mayank-babu-agrawal-v-state-of-u-p-ors-45018
- **Pages:** 14

## Headnote

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 -
Departmental Enquiry - charges do not
elucidate
the
imputed
misconductdocument relied upon has been taken as a
separate charge-gross violation of Rule 7demand for summoning employees/staff
for cross examination declined- whole
enquiry stands vitiated.

Held - Taking the allegations made in the
charge on face value, it cannot be said by any
stretch of imagination that the charge is
precise, clear and definite to give sufficient
indication to the petitioner of the facts and
circumstances of misconduct against him. The
charge does not elucidate the imputation of
misconduct. The allegations are vague and
beyond comprehension. In support of the
allegations forty-five documents were relied
upon. They range from 1990 to 1998 i.e. from
the date of appointment of the petitioner to
the date when the petitioner was placed under
suspension. It is not clear from the charge,
what is the alleged misconduct imputed
against the petitioner, the allegation does not
refer to any specific incident of a particular
year. On the contrary in the same breath
Enquiry Officer records that the service record
of the petitioner reflects that it is satisfactory
and the integrity of the petitioner has been
duly certified. Upon considering the very same
entries,
petitioner
was
confirmed
as
a
permanent employee. It is not inferable from
the charges 11 as to which act or omission has
been committed by the petitioner, in which
year and month the specific circumstances
that constitutes misconduct is not detailed.
(Para 23)

Further,
he
demanded
that
the
employees/staff named by him be summoned
for cross-examination, which admittedly was
declined by the Enquiry Officer only for the
reason that the witnesses were not mentioned
in the charge-sheet, therefore, were 7. (1964)
4 SCR 718 15 not required to be summoned.
The Enquiry Officer sought to prove the
charges relying upon the documents which
were not proved by their author nor the
author of the documents were summoned for
cross-examination. Even if the employee
refuses to participate in the enquiry, the
employer cannot straight away dismiss him,
but must hold an ex-parte enquiry where
evidence must be led as held by the Supreme
Court in Imperial Tobacco Company Limited
Vs. Its Employees. (Para 32)

Writ Petition allowed. (E-9)

List of cases Cited:

## Text

_Characters 0–39,988 of 45,864. This is a partial read: ask again with offset=39988 for what follows._

4 All. Mayank Babu Agrawal Vs. State of U.P. & Ors.
563
apparent that both the said judgments
were rendered in the circumstance where
the
applications
for
compassionate
appointment
were
moved
within
a
reasonable time from the date of death of
the incumbent on the post.

25. However, in the instant case the
petitioner did not move application for
compassionate appointment
within a
reasonable time and has not offered any
explanation for moving application after
one year from the date of cause of action
which arose with the death of his father.

26. It is not a case where the
application was moved under the old
scheme but remained pending and new
scheme came in. In fact, there was no
occasion for the Bank to consider the
claim of family of the deceased employee
to grant financial assistance to overcome
the crisis immediately on the death of the
employee. The law laid down by the Apex
Court in MGB Gramin bank (supra) has
no application in the fact situation of the
present case. The ratio in Canara Bank
and another (supra) cannot be applied.
The question of reference in State Bank of
India
(supra)
does
not
arise
for
consideration in the instant case.

27. Moreover, the scheme of
compassionate appointment implemented,
w.e.f 15.3.2019 can not be given
retrospective effect. The said scheme can
be
applied
only
in
the
following
contingencies, i.e:-

(i)where the incumbent on the
post dies in harness after implementation
of the scheme w.e.f 15.3.2019.

(ii)the
application
seeking
financial assistance (ex-gratia payment)
under the old scheme was moved and
remained pending for the inaction or non
consideration
on
the
part
of
the
respondent bank.

(iii)where the application was
moved under the old scheme (for ex gratia
payment) and within a short period from
the date of receiving of the application,
new
scheme
for
compassionate
appointment came into force.

28. Further, the time limit provided
under Clause-8 of the current scheme for
considering application within a period of
five years has to be reckoned from the
date of death of the employee in harness
and cannot come to rescue of the
petitioner who himself moved application
after a lapse of one year from the date of
accrual of the cause of action or death of
the employee without any explanation for
the delay.

29. In view of the above, the
decision of the Bank in refusing to
consider the claim for compassionate
appointment made by the petitioner's
mother, cannot be said to suffer from any
infirmity.

30. The writ petition is found devoid
of merit and hence, dismissed.
----------
(2019)12 ILR A563

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ A No. 26849 of 2018

Mayank Babu Agrawal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
564 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Pradeep Singh, Arti Agrawal, Sri Ashok
Mehta

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 -
Departmental Enquiry - charges do not
elucidate
the
imputed
misconductdocument relied upon has been taken as a
separate charge-gross violation of Rule 7demand for summoning employees/staff
for cross examination declined- whole
enquiry stands vitiated.

Held - Taking the allegations made in the
charge on face value, it cannot be said by any
stretch of imagination that the charge is
precise, clear and definite to give sufficient
indication to the petitioner of the facts and
circumstances of misconduct against him. The
charge does not elucidate the imputation of
misconduct. The allegations are vague and
beyond comprehension. In support of the
allegations forty-five documents were relied
upon. They range from 1990 to 1998 i.e. from
the date of appointment of the petitioner to
the date when the petitioner was placed under
suspension. It is not clear from the charge,
what is the alleged misconduct imputed
against the petitioner, the allegation does not
refer to any specific incident of a particular
year. On the contrary in the same breath
Enquiry Officer records that the service record
of the petitioner reflects that it is satisfactory
and the integrity of the petitioner has been
duly certified. Upon considering the very same
entries,
petitioner
was
confirmed
as
a
permanent employee. It is not inferable from
the charges 11 as to which act or omission has
been committed by the petitioner, in which
year and month the specific circumstances
that constitutes misconduct is not detailed.
(Para 23)

Further,
he
demanded
that
the
employees/staff named by him be summoned
for cross-examination, which admittedly was
declined by the Enquiry Officer only for the
reason that the witnesses were not mentioned
in the charge-sheet, therefore, were 7. (1964)
4 SCR 718 15 not required to be summoned.
The Enquiry Officer sought to prove the
charges relying upon the documents which
were not proved by their author nor the
author of the documents were summoned for
cross-examination. Even if the employee
refuses to participate in the enquiry, the
employer cannot straight away dismiss him,
but must hold an ex-parte enquiry where
evidence must be led as held by the Supreme
Court in Imperial Tobacco Company Limited
Vs. Its Employees. (Para 32)

Writ Petition allowed. (E-9)

List of cases Cited:

1. Govinda Menon v. Union of India, AIR 1967
SC1274, 1283

2. Surath Chandra Chakravarty Vs. The State
of West Bengal, AIR 1971 SC 752

3. Shri Anant R. Kulkarni Vs. Y.P. Education
Society & others, 2013 6 SCC 515

4. Roop Singh Negi vs. Punjab National Bank
and others,2009 (2) SCC 570

5. M.V. Bijlani v. Union of India this Court
held: (SCC p. 95, para 25)

6. Union of India vs. H.C. Goel, (1964) 4 SCR 718

7. Imperial Tobacco Company Limited Vs. Its
Employees, AIR 1962 SC 1348 (9)

8. Meenglas Tea Estate V. The Workmen, AIR
1963 SC 1719

9. Deepali Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya (D.ED.) and others,
(2013) 10 SCC 324

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Ashok Mehta, learned
Senior Advocate assisted by Sri Pradeep
Singh, learned counsel for the petitioner
and learned Standing Counsel for the
State-respondents.
4 All. Mayank Babu Agrawal Vs. State of U.P. & Ors.
565

2. The facts giving rise to the instant
writ petition, briefly stated, is that
petitioner came to be appointed on
compassionate ground on the post of
Junior Assistant Clerk on 3 July 1990.
Petitioner was dismissed vide order dated
30 March 1999, passed by the second
respondent-Disciplinary
Authority/Joint
Development Commissioner, Allahabad.
The order of dismissal was subjected to
challenge in a petition being Writ-A
No.15413 of 1999. The writ petition came
to be allowed on the ground that the
principles of natural justice was flouted
with impunity. The operative portion of
order dated 21 November 2017, reads thus:

"From the above discussion, it
is clear that the legal requirements of
conducting a fair and impartial inquiry
and thereafter arriving on the fair
conclusion, have been disregarded by the
respondents, therefore, the dismissal
order dated 30.3.1999 is hereby quashed.
The petitioner shall be reinstated in
service with 50 per cent of the arrears of
salary because he did not submit any
reply to the charge-sheet initially, which
led to ex-parte inquiry against him. The
respondents are at liberty to proceed
against the petitioner departmentally
afresh in accordance with law."

3. The order of the learned Single
Judge came to be assailed by the second
respondent in appeal being Special
Appeal No.84 of 2018. The appellate
Court modified the operative portion of
the order, which reads thus:

"We
modify
the
operative
portion of the order of the learned Single
Judge in the following manner:

1. Once the inquiry is vitiated
the natural consequence is for the
employer to restart the inquiry from the
stage
it
was
found
vitiated.
We
accordingly, direct the Inquiry Officer to
conclude the inquiry after examining all
the witnesses and after giving liberty to
the writ-petitioner to defend himself. Such
inquiry would be completed within four
months from the date of production of a
certified copy of this order before the
Disciplinary Authority in accordance with
the governing service Rules.

2. The question of reinstatement
with arrears of salary would be subject to
final
order
being
passed
by
the
Disciplinary Authority, after conclusion
of the inquiry.

We find that the writ-petitioner
was
suspended
during
the
inquiry
proceeding, it would be open to the writpetitioner
to
apply
for
subsistence
allowance during the inquiry proceeding.
If the writ-petitioner applies before the
Disciplinary Authority, he will pass
appropriate order in accordance with
Rules within a period of two weeks.

The special appeal is partly
allowed with the aforesaid modification."

4. Pursuant thereof, the disciplinary
enquiry was initiated from the stage of
charge sheet. The earlier charge sheet
dated 5 November 1998 was served upon
the petitioner afresh on 7 March 2018, by
the
Enquiry
Officer
reiterating
the
charges. Petitioner submitted reply to the
charge sheet on 21 March 2018, which
was duly received by the Enquiry Officer,
wherein, petitioner denied the allegations
of misconduct and desired to crossexamine 14 officers/staff, purportedly,
authors of the documents The witnesses
desired by the petitioner were not
summoned. It is noted in the enquiry
report that petitioner had not relied upon
any evidence or witness in defence,
566 INDIAN LAW REPORTS ALLAHABAD SERIES
though, it is admitted that petitioner
insisted to cross-examine the officers, i.e.
the authors of the documents relied upon
in the charge sheet in support of the
charge. The Enquiry Officer declined the
request of the petitioner to cross-examine
the officers for the reason that the
witnesses are not mentioned in the
charge-sheet to support the charges. It is
further noted by the Enquiry Officer that
several opportunities was given to the
petitioner
to
furnish
the
list
of
documents/witnesses, however, despite
opportunity, petitioner kept insisting that
he desired to examine the 14 officers/staff
to extract the truth with regard to the
documents
relied
upon.
It
appears,
thereafter, the Enquiry Officer proceeded
to prove the charges relying upon the
documents taking that petitioner had
nothing to say in defence.

5. Three charges were leveled
against the petitioner. Charge nos.1 and 3
have been proved, partly, whereas, charge
no.2 has been disproved. The charges
reads thus:

"vkjksi la[;k&1

e`rd deZpkjh vkfJr lsok fu;ekoyh 1974
ds v/khu 18 o"kZ dh vk;q iw.kZ djrs gh dfu"B fyfid ds
in ij lgkuqHkwfriwoZd dh xbZ fu;qfDr ds izkjEHk ls gh
vki mPpkf/kdkfj;ksa ds vkns'kksa dh vogsyuk] fdlh Hkh
egRoiw.kZ cSBd ;k dk;Z ds le; LosPNkpkfjrkiw.kZ <ax ls
vf/kdkfj;ksa ds vkns'kksa dh vogsyuk djrs gq, dk;kZy; ls
vuqifLFkr gks tkus] dk;kZy; dh Nfo /kwfey djus] vius
iVy ls lEcfU/kr vfHkkys[k@i=kofy;ka miyC/k u
djkdj 'kkldh; dk;Z esa vojks/k mRiUu djus] fcuk
fpfdRlk izek.k i= ds fpfdRlkodk'k izkFkZuk i= Hkstdj
lrr vuqifLFkr jgus ds vknh gSaA fu;qfDr ds le; ls gh
izk;% lHkh mi@la;qDr fodkl vk;qDrksa rFkk LvkQ
vkfQlj }kjk fujarj dM+h psrkofu;ksa@HkRlZuk ds ckotwn
vius vkpj.k ,oa dk;Z'kSyh esa lq/kkj u djus] egkefge
jkT;iky ,oa vU; mPp Lrjh; cSBdksa rFkk e.Myh;
leh{kk cSBd tSls egRoiw.kZ dk;ksZa ds le; tkucw>dj
vodk'k ij pys tkus rFkk jk"VÂah; ioksaZ ij Hkh
vuqifLFkr jgus ds nks"kh gSaA

vkjksi la[;k&2

vki Lohd`r ckmpjksa ds fcy rS;kj djus
esa tkucw>dj foyEc djus] rS;kj fcy Hkh
vkgj.k@forj.k vf/kdkjh ds gLrk{kj djkdj
vkgj.k gsrq dks"kkxkj dks le; ls u Hkstus] dbZ
Lohd`r ckmpj fcy rS;kjh gsrq dbZ ekg rd vius
Lrj ij jksdus] vdkj.k foyEc ds laca/k esa
mPpkf/kdkfj;ksa }kjk vk[;k ekaxs tkus ij
vk[;k@fooj.k izLrqr djus rFkk fcyksa ds
vkgj.k@forj.k esa foyEc ds ek/;e ls 'kkldh;
dk;ksZa esa vojks/k mRiUu djus ds nks"kh gSaA

vkjksi la[;k&3

vki izk;% foyEc ls dk;kZy; vkus] vijkUg
esa le; ls igys mPpkf/kdkfj;ksa ds dk;kZy; esa ekStwn
jgus ds ckotwn fcuk vuqefr dk;kZy; NksM+dj pys tkus]
'kkldh; dk;Z esa vlg;ksx] LoLFk jgrs gq, Hkh fcuk
fpfdRlk izek.k i= ds fpfdRlkodk'k dh ekax djus]
i<+kbZ] ijh{kk rFkk vU; futh dk;ksZa gsrq jktdh; dk;Z esa
O;o/kku mRiUu dj fpfdRlkodk'k dk nq:i;ksx djus]
vYi lsokdky esa gh ns; lEiw.kZ fpfdRlkodk'k dk
miHkksx djus] yfEcr dk;Z fuLrkj.k gsrq vkns'k fn, tkus
ij
vodk'k
ij
pys
tkus
dh
/kedh
,oa
vuq'kklughurkiw.kZ <ax ls e.Myk;qDr dks lh/ks i= izs"k.k
ds dkj.k m-iz- ljdkjh deZpkjh lsok fu;ekoyh ds fu;e
9 rFkk 27, ds mYya?ku rFkk dk;Zfgr esa vf/kdkfj;ksa }kjk
vodk'k vLohd`fr fd, tkus ij fcuk vuqefr vukf/kd`r
<ax ls vuqifLFkr gksdj m-iz- ljdkjh deZpkjh lsok
fu;ekoyh ds fu;e 3 ds mYya?ku ds nks"kh gSaA

6. The charges is not accompanied
with the statement of misconduct. In
support of charge nos.1 and 3, the list of
documents relied upon were same. The
Enquiry Officer while dealing with charge
no.1, noted that petitioner not only denied
the charge but categorically stated that the
documents relied upon, does not prove the
charge.

7. It appears from the enquiry report
that
the
Enquiry
Officer,
barring
document no.1 and document no.2, which
pertains to petitioner's appointment and
the High School certificate, the Enquiry
Officer has treated each document as a
separate/independent
charge
and
thereafter returned findings on each of the
documents i.e. proved or not proved.
Thereafter, inference has been drawn by
the Enquiry Officer, that charge no.1 is
4 All. Mayank Babu Agrawal Vs. State of U.P. & Ors.
567
proved in part. The report further notes
that as per the service record of the
petitioner since 1990-91 to 1997-98, the
services of the petitioner has been
certified either good, very good or
satisfactory, integrity is duly certified.
However, it is noted that in the matters
pertaining to Rules 67 and 95 of the
Fundamental Rules, Part-II, Chapter 2 to
4 has been violated. Accordingly, the
Enquiry Officer has held that charge no.1
has been proved partly.

8. Charge no.2 has been held not
proved.

9. In respect of charge no.3, an
inference has been drawn by the Enquiry
Officer that there is no violation of Rule 3
of U.P. Government Servants Conduct
Rules, 19561. However, petitioner has
been found guilty of violating of Rule 27A of Rules, 1956, for communicating
directly
with
the
superior
officer
bypassing the proper channel. The charge
has been proved in part.

10. It is not being disputed by the
contesting parties that proceedings against
the petitioner was conducted under the
provisions of the U.P. Government
Servant (Discipline and Appeal) Rules,
19992.

11. In the aforesaid backdrop, the
submission of the learned Senior Counsel
appearing for the petitioner is as follows:

(i) that the charges taken on face
value is vague, not definite nor precise as
mandated under Rule 7 of Rules, 1999;

(ii) that the procedure for
imposition of major penalty mandated
under Rule 7 has not been complied,
particularly, Sub-rule (ii), (iii), (iv) and

(vii), that is, upon denial of the
charge, the witnesses named by the
petitioner to cross-examine them was
denied;

(iii) that the onus of proving
innocence of the charge was shifted upon
the petitioner despite the petitioner having
denied all the charges;

(iv) that the impugned order has been
passed at the behest of the superior officer
i.e. Commissioner, Allahabad Division,
Allahabad,
upon
pressurizing
the
Disciplinary Authority.

12. In rebuttal, the learned Standing
Counsel appearing for the respondents
submits that the enquiry report reflects
that
petitioner
was
granted
several
opportunities to produce evidence in
support of his defence, but petitioner did
not comply. There was no occasion to
summon or cross-examine the officers
desired by the petitioner as they were not
named as witnesses in the charge sheet.

13. On specific query, learned
counsel for the respondent does not
dispute that the petitioner had denied the
charges and insisted to summon the
witnesses.

14. Rival submissions fall for
consideration.

15. The question that arises for
determination is as to whether the
disciplinary enquiry stands vitiated for
non-compliance
of
the
mandatory
procedure contemplated in Rule 7 of
Rules, 1999, and whether the charges are
vague, not definite/precise i.e. beyond
comprehension.

16. On bare perusal of the charges
taken on face value, it merely records the
568 INDIAN LAW REPORTS ALLAHABAD SERIES
allegation against the petitioner alleging that
petitioner absented without proper leave
application; he is habitual in not complying
the orders of the superiors. The leave
applications
were
not
submitted
in
prescribed proforma under the Rules;
petitioner directly communicated with the
superior officer bypassing the proper
channel, etc. The allegations are mere
general statements not disclosing the precise
imputation of misconduct. In other words,
the charge is not definite/clear and precise
indicating as to when the petitioner flouted
the orders of the officers; proceeded on
leave
without
information;
and
not
complied with the directions of the
superiors or/and when bypassed the proper
channel while communicating with the
superior officer. The substance of the
misconduct is absent in the charges.

17. On perusal of the enquiry report,
it reflects that the documents relied upon
in support of the charge sheet, in
particular document nos.3, 4 and 5, have
been taken by the Enquiry Officer as a
separate charge and a finding has been
returned on each document as to whether
it is proved against the petitioner or not.
The documents are of a particular alleged
incident but the charge does not detail the
substance and circumstances of the
incident constituting the misconduct. In
other words the Enquiry Officer himself
was not clear about the charge, the
evidence relied upon in support of the
charge was taken as a separate charge.
The departmental enquiry taken as it
stands is in gross violation of Rule 7 of
Rules, 1999, providing the procedure for
imposing major penalties. Sub-rule (ii),
(iii), (iv) and (vi) of Rule 7 is extracted:

"7. Procedure for imposing
major penalties- Before imposing any
major penalty on a Government Servant,
an inquiry shall be held in the following
manner:

(i) xxx

xxx xxx xxx

(ii) The facts constituting the
misconduct on which it is proposed to
take action shall be reduced in the from of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the Disciplinary Authority.

(iii) The charges framed shall
be so precise and clear as to give
sufficient indication to the charged
Government Servant of the facts and
circumstances against him. The proposed
documentary evidences and the name of
the witnesses proposed to prove the same
alongwith oral evidences, if any, shall be
mentioned in the charge-sheet.

(iv) The charged Government
Servant shall be required to put in a
written statement of his defence in person
on a specified date which shall not be less
than 15 days from the date of issue of
charge-sheet and to state whether he
desires to cross-examine any witness
mentioned in the charge-sheet and
whether desires to give or produce
evidence in his defence. He shall also be
informed that in case he does not appear
or file the written statement on the
specified date, it will be presumed that he
has none to furnish and inquiry officer
shall proceed to complete the inquiry ex
parte.

(v) xxx
xxx xxx xxx

(vi) xxx xxx xxx xxx

(vii)
Where
the
charged
Government Servant denies the charges
the Inquiry Officer shall proceed to call
the witnesses proposed in the chargesheet and record their oral evidence in
presence of the charged Government
Servant who shall be given opportunity to
cross-examine
such
witnesses.
After
4 All. Mayank Babu Agrawal Vs. State of U.P. & Ors.
569
recording the aforesaid evidences, the
Inquiry Officer shall call and record the
oral
evidence
which
the
charged
Government Servant desired in his
written statement to be produced in his
defence: Provided that the Inquiry Officer
may for reasons to be recorded in written
refuse to call a witness."

18. The mandatory provision of
Rules, 1999, framed by the Governor in
exercise of powers conferred under the
proviso to Article 309, is legislative in
nature and binding upon the respondents
and the delinquent employee. Sub-rule
(iii) of Rule 7 mandates that the ''charges
framed shall be so precise and clear' to
give
indication
to
the
delinquent
employee of the facts and circumstances
against him. Further, Sub-rule (vii)
provides that the Enquiry Officer shall
call and record the oral evidence which
the delinquent employee desired in the
written statement. In the facts of the
instant case neither the charge is definite
and clear nor did the Enquiry Officer
summon the officers demanded by the
petitioner.

19. The purpose of holding an
enquiry against any employee is not only
with a view to establish the charges
levelled against him or to impose a
penalty, but is also conducted with the
object of recording the truth of the matter,
and in that sense, the outcome of an
enquiry may either result in establishing
or vindicating the stand of the delinquent,
hence result in his exoneration. Therefore,
fair action on the part of the authority
concerned is a paramount necessity.

20. The word ''charge' denotes the
accusations
or
imputations
against
member of the service, vide Govinda
Menon v. Union of India. The word
''definite' signifies that which is defined or
has the limits drawn or marked out;
definite is said of things as they present
themselves or are presented to the mind;
as a definite idea, a definite proposal;
positive
assertion.
''Definite'
means
something which is not vague. The word
''vague' is the antonym of definite. If the
charge which is supplied is incapable of
being
understood
or
defined
with
sufficient certainty it is vague. If on
reading the charges furnished to the
employee is capable of being intelligently
understood and sufficiently definite to
furnish
objections
and
evidence
in
defence, the charge then is not vague.

21. In Surath Chandra Chakravarty
Vs. The State of West Bengal, the
Supreme Court held that it is not
permissible to hold an enquiry of vague
charges as the same does not give a clear
picture to the delinquent to raise the
effective defence as he will be unaware of
the exact nature of the allegation against
him, and what defence he should put up
for rebuttal thereof. The Court observed
as under:-

"The grounds on which it is
proposed to take action have to be
reduced to the form of a definite charge
or
charges
which
have
to
be
communicated to the person charged
together
with
a
statement
of
the
allegations on which each charge is based
and any other circumstance which it is
proposed to be taken into consideration in
passing orders has to be stated. This rule
embodies a principle which is one of the
specific contents of a reasonable or
adequate
opportunity
for
defending
oneself. If a person is not told clearly and
definitely what the allegations are on
570 INDIAN LAW REPORTS ALLAHABAD SERIES
which the charges preferred against him
are founded, he cannot possibly, by
projecting his own imagination, discover
all the facts and circumstances that may
be in the contemplation of the authorities
to be established against him."

22. The principle was reiterated by
the Supreme Court in Shri Anant R.
Kulkarni Vs. Y.P. Education Society &
others, it was held that where the charge
sheet is accompanied by the statement of
facts and the allegations are not specific
in the charge sheet, but are crystal clear
from the statement of facts, in such a
situation, as both constitute the same
document it cannot be held that the charge
is not specific or definite. But in case, the
statement of facts is not clear and definite
the enquiry would vitiate. The relevant
portion of paragraph no.10 is extracted:

"Thus,
nowhere
should
a
delinquent be served a chargesheet,
without providing to him, a clear, specific
and definite description of the charge
against
him.
When
statement
of
allegations are not served with the
chargesheet, the enquiry stands vitiated,
as having been conducted in violation of
the principles of natural justice. Evidence
adduced should not be perfunctory, even
if the delinquent does not take the defence
of, or make a protest with against that the
charges are vague, that does not save the
enquiry from being vitiated, for the
reason that there must be fair-play in
action, particularly in respect of an order
involving adverse or penal consequences.
What is required to be examined is
whether the delinquent knew the nature of
accusation. The charges should be
specific, definite and giving details of the
incident which formed the basis of
charges and no enquiry can be sustained
on vague charges. (Vide: State of Andhra
Pradesh & Ors. v. S. Sree Rama Rao, AIR
1963 SC 1723; Sawai Singh v. State of
Rajasthan, AIR 1986 SC 995; Union of
India & Ors. v. Gyan Chand Chattar,
(2009) 12 SCC 78; and Anil Gilurker v.
Bilaspur Raipur Kshetria Gramin Bank &
Anr., (2011) 14 SCC 379."

23. On taking the allegations made
in the charge on face value, it cannot be
said by any stretch of imagination that the
charge is precise, clear and definite to
give sufficient indication to the petitioner
of the facts and circumstances of
misconduct against him. The charge does
not
elucidate
the
imputation
of
misconduct. The allegations are vague
and beyond comprehension. In support of
the allegations forty five documents were
relied upon. They range from 1990 to
1998 i.e. from the date of appointment of
the petitioner to the date when the
petitioner was placed under suspension. It
is not clear from the charge, what is the
alleged misconduct imputed against the
petitioner, the allegation does not refer to
any specific incident of a particular year.
On the contrary in the same breath
Enquiry Officer records that the service
record of the petitioner reflects that it is
satisfactory and the integrity of the
petitioner has been duly certified. Upon
considering
the
very
same
entries,
petitioner was confirmed as a permanent
employee. It is not inferable from the
charges as to which act or omission has
been committed by the petitioner, in
which year and month the specific
circumstances that constitutes misconduct
is not detailed.

24. On bare perusal of the enquiry
report, it transpires that Enquiry Officer
has taken each document relied upon in
4 All. Mayank Babu Agrawal Vs. State of U.P. & Ors.
571
support of the charges as a separate charge
and thereafter returned a finding thereon,
which in my opinion is in gross violation
of the procedure for imposition of major
penalty prescribed under Rule 7 of Rules,
1999. The charges taken on face value is
no charge in the eye of law. In the
circumstances the enquiry as a whole
stands vitiated.

25. It is specifically pleaded in
paragraph nos.30, 31 and 32 of the writ
petition that no date and time was fixed
for oral evidence. The documents relied
upon by the Enquiry Officer in support of
the charge is neither supported nor proved
by oral evidence, the enquiry report was
submitted without any evidence being led
before the Enquiry Officer. Paragraph
nos.30, 31, 32 are extracted:

"30. That the enquiry officer
never fixed any date, time and place for
the oral evidence to prove the charges
against the petitioner even after various
requests dated 02.04.2018, 24.04.2018
and 08.05.2018 by the petitioner. The true
copy of reminders for fixing date, time
and place is filed herewith and marked as
Annexure-14 to the writ petition.

31.
That
the
documents
presented before enquiry officer was
never supported nor proved by any oral
evidence and accordingly the documents
not proved, can not be the basis of
impugned order dated 17.10.2018.

32. That without any evidence
enquiry officer submitted the enquiry report
on 21.05.2018 and the petitioner was
provided the copy of the same vide letter
dated 11.06.2018. The true copy of the letter
dated 11.06.2018 is filed herewith and
marked as Annexure-15 to the writ petition."

26. The reply has been given by the
respondents in paragraph no.21 of the
counter affidavit, which reads thus:

"21.
That
the
contents
of
paragraph nos.29, 30, 31, 32 and 33 of
the writ petition are misconceived as
stated hence are denied. Detailed and
appropriate reply has already been given
in the preceding paragraphs of the
counter affidavit. However, it is submitted
that after considering and examining
entire facts, material and records, order
impugned has been passed after affording
ample opportunity to the petitioner so as
to substantiate his defence hence the same
is just and proper and in accordance with
Rules and Law. The enquiry was initiated
and concluded in the matter, in the light
of order dated 02.02.2018 passed by the
Division Bench of this Hon'ble Court in
the Special Appeal No.84 of 2018."

27. Further, reliance has been placed
by the learned Standing Counsel on the
averments made in paragraph no.6 of the
counter affidavit. Paragraph no.6 (IV),
(V) and (VI) of the counter affidavit,
reads thus:

"6. xxx
xxx xxx xxx

IV. The enquiry officer, after
examining and considering the provisions
laid down under Rules, 1999 and
Employees Conduct Rules, 1956 as well
as provisions laid down under Financial
Handbook,
after
affording
ample
opportunity
to
the
petitioner
for
substantiating his defence, submitted his
enquiry report dated 21.05.2018. True
copy of letter dated 09.04.2018 as well as
enquiry report dated 21.05.2018 are
being filed herewith and marked as
Annexure-C.A.-2 & 3 respectively to this
affidavit.
572 INDIAN LAW REPORTS ALLAHABAD SERIES

V. In pursuance to aforesaid
enquiry
report,
the
then
Joint
Development
Commissioner,
as
per
provisions laid down under Rules, 1999,
issued letter dated 11.06.2018 requiring
the petitioner to submit his stance over
the
enquiry
report
21.05.2018
and
thereafter in pursuance to the same, the
petitioner has submitted his reply dated
24.06.2018 (Annexure no.16 to the writ
petition)
before
Joint
Development
Commissioner.

VI. Finally, the disciplinary
authority
i.e.
Joint
Development
Commissioner, after considering and
examining the entire aspects of the
matter, adjudicated the matter by means
of order dated 17.10.2018, whereby the
termination
order
dated
30.03.1999
passed against the petitioner previously,
has been affirmed and kept intact being
found legal and valid."

28. The averments
made
in
paragraph no.6 of the counter affidavit
has been denied by the petitioner in the
rejoinder affidavit, it is further contended
that the impugned order dated 17 October
2018,
passed
by
the
Disciplinary
Authority, has merely reaffirmed the
earlier order of dismissal passed on 30
March 1999, which came to be quashed
by this Court on 21 November 2017.
Division
Bench,
in
appeal,
merely
modified the order directing the Enquiry
Officer to conclude the enquiry after
giving opportunity to the petitioner. The
order of the learned Single Judge,
quashing the earlier order of dismissal
was not interfered with, but only the
arrears of salary was made subject to the
outcome of the enquiry. In other words,
the Disciplinary Authority had to apply
his mind afresh on the enquiry report that
would have been submitted after enquiry
being undertaken from the stage of
charge-sheet.

29. Supreme Court in Roop Singh
Negi vs. Punjab National Bank and
others, was of the view that there must be
some evidence, on record to show that the
delinquent employee had indulged in the
alleged act of misconduct. There must be
some evidence to link the petitioner to the
alleged misconduct. Supreme Court held
that departmental proceeding is a quasijudicial proceeding. The inquiry officer
performs a quasi-judicial function. The
inquiry officer has a duty to arrive at a
finding upon taking into consideration the
materials brought on record by the parties.
The inquiry officer should appreciate the
evidences and the conclusion should be
based on evidence. The inquiry report if
based on conjectures and surmises cannot
be sustained. Suspicion howsoever high,
cannot be a substitute for legal proof.

30. Yet again in M.V. Bijlani v.
Union of India this Court held: (SCC p.
95, para 25)

"25. ....Although the charges in
a departmental proceedings are not
required to be proved like a criminal trial,
i.e., beyond all reasonable doubts, we
cannot lose sight of the fact that the
Enquiry Officer performs a quasi-judicial
function,
who
upon
analysing
the
documents must arrive at a conclusion
that there had been a preponderance of
probability to prove the charges on the
basis of materials on record. While doing
so, he cannot take into consideration any
irrelevant fact. He cannot refuse to
consider the relevant facts. He cannot
shift the burden of proof. He cannot reject
the relevant testimony of the witnesses
only on the basis of surmises and
4 All. Mayank Babu Agrawal Vs. State of U.P. & Ors.
573
conjectures. He cannot enquire into the
allegations with which the delinquent
officer had not been charged with."

31. In Union of India vs. H.C. Goel,
it was held:

"....The
two
infirmities
are
separate and distinct though, conceivably,
in some cases, both may be present.
There may be cases of no evidence even
where the Government is acting bona
fide; the said infirmity may also exist
where the Government is acting mala
fide and in that case, the conclusion of
the Government not supported by any
evidence may be the result of mala fides,
but that does not mean that if it is proved
that there is no evidence to support the
conclusion of the Government, a writ of
certiorari will not issue without further
proof of mala fides. That is why we are
not prepared to accept the learned
Attorney-General's argument that since
no mala fides are alleged against the
appellant in the present case, no writ of
certiorari can be issued in favour of the
respondent."

32. In the facts of the instant case, it
is not in dispute that the petitioner
appeared
to
participate
in
the
departmental enquiry, he filed written
statement
denying
the
allegations.
Further,
he
demanded
that
the
employees/staff
named
by
him
be
summoned for cross-examination, which
admittedly was declined by the Enquiry
Officer only for the reason that the
witnesses were not mentioned in the
charge-sheet, therefore, were not required
to be summoned. The Enquiry Officer
sought to prove the charges relying upon
the documents which were not proved by
their author nor the author of the
documents were summoned for crossexamination. Even if the employee
refuses to participate in the enquiry, the
employer cannot straight away dismiss
him, but must hold an ex-parte enquiry
where evidence must be led as held by the
Supreme Court in Imperial Tobacco
Company Limited Vs. Its Employees.

33. It is an elementary principle that
a person, who is required to answer a
charge must know not only the accusation
but also the testimony by which the
accusation is supported. He must be given
fair chance to hear the evidence in support
of the charge and to put such relevant
questions by way of cross-examination as
he desires. Then he must be given a
chance to rebut the evidence led against
him. It is admitted that the witnesses
sought by the petitioner to be summoned
were authors of the documents listed in
the charge-sheet and the documents were
to be used against the petitioner to prove
the charge. This is the rarest requirement
of an enquiry of this character and this
requirement must be substantially fulfilled
before the result of the enquiry. Reference
may be made to the decision rendered in
Meenglas Tea Estate V. The Workmen.
Nothing of this sought was done by the
Enquiry Officer.

34. Further, reliance has been placed
on communication dated 15 October
2010, issued by the Commissioner,
Allahabad Division, Allahabad, addressed
to
the
Principal
Secretary
Village
Development Uttar Pradesh, wherein, it
has been stated that pursuant to the order
passed by the Division Bench, petitioner
is entitled to subsistence allowance, as the
enquiry had not been concluded within
four months, as directed by the Court. In
the opinion of the Commissioner, in case,
574 INDIAN LAW REPORTS ALLAHABAD SERIES
subsistence allowance is to be paid to the
petitioner which would workout to be a
large amount, that would tantamount to
financial irregularity. Accordingly, the
Commissioner recommended that an
enquiry be conducted by the department
against the Disciplinary Authority. The
order was received on 17 October 2018
by
the
second
respondent,
the
Disciplinary Authority, who on the very
same date under threat and coercion
exercised by Divisional Commissioner
passed the impugned order hurriedly in
violation of the mandatory rules with
impunity.

35. In this backdrop, it is urged that
the impugned order has been passed on
the fear of the superior officer, who had
expressed his mind that he was having
some grudge and/or prejudice against the
petitioner. In other words, it is contended
that the Disciplinary Authority was
coerced to pass the impugned order
dismissing the petitioner from service.
The documents placed on record by the
petitioner before the Court has not been
denied by the respondents, rather it is
admitted. The facts reflect that petitioner
has
been
subjected
to
repeated
victimisation under the garb of holding
departmental enquiry.

36. Learned counsel for the
respondent,
finally,
has
raised
a
preliminary objection with regard to the
maintainability of the writ petition. It is
sought to be urged that the petitioner has
an alternative remedy of either preferring
a statutory appeal under Rules, 1999, or
approaching the Administrative Tribunal.

37. In rebuttal, it is urged that the
petitioner has not raised any defence on
merit nor has he led any evidence to show
that the charges against the petitioner
could not have been proved. The
contention of the learned counsel for the
petitioner is that taking the charges as
they stand it does not make out a case of
misconduct being absolutely vague and
unclear. Further, the mandatory provision
of Rule 7 has not been followed as is writ
large from the enquiry report without
raising any counter argument. Petitioner
has been subjected to harassment by the
respondents wilfully and deliberately with
a pre-determined mind to ensure that he is
kept out of service. In the circumstances,
it is urged that alternative remedy, in the
given facts, is a futile exercise. The
submission of the learned Counsel for the
petitioner has merit. The objection,
accordingly, is rejected.

38. The question that follows is as to
whether petitioner is entitled to backwages on reinstatement. In Deepali
Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya (D.ED.) and
others, Supreme Court held, in case of
wrongful
termination
of
service,
reinstatement with continuity of service
and back wages is the normal rule. Where
the Court reaches a conclusion that the
inquiry was held in respect of frivolous
issue
or
petty
misconduct,
as
a
camouflage to get rid of the employee or
victimise him, and the punishment is a
result of such scheme or intention. In such
cases, the principles relating to back
wages will be the same as those applied in
the cases of illegal termination.

The proposition which was
culled out from the judgments referred by
the Supreme Court while deciding the
issue of back-wages, inter alia, for the
instant case is as follows:

"(i)
In
cases
of
wrongful
termination of service, reinstatement with
4 All. Mayank Babu Agrawal Vs. State of U.P.