# Mohd. Asgar Ali v. Union of India & Ors

- **Citation:** (2024) 4 ILRA 264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-26
- **Case number:** Writ A No. 4562 of 1998
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-asgar-ali-v-union-of-india-ors-51790
- **Pages:** 11

## Headnote

Rakesh Sharma, Deepanshu Dass, Dinesh
Kumar Pandey, IH Farooqui, Raj Kumar
singh, Sanjiv Srivastava

A.
Service
Law
-
Central
Industrial
Security Force (CISF) Rules, 1969 - Rule
7-A, Rule 29-A, Rule 34 - Constitutional
Law - Article 226 - Disciplinary Proceedings -
Natural Justice - Bias - Petitioner, a CISF
Constable, challenged removal order dated
04.12.1996, appellate order dated 01.08.1997,
and revisional order dated 24.06.1998 - Alleged
bias
of
Inquiry
Officer,
non-supply
of
documents, and lack of jurisdiction of Deputy
Commandant to appoint Inquiry Officer - Held,
Deputy Commandant competent as Disciplinary
Authority under Rule 7-A and Rule 29-A read
with Schedule II - No prejudice shown from
alleged bias or non-supply of documents -
Petitioner
participated
in
inquiry,
crossexamined witnesses, and received all requested
documents - Revisional powers of DG/CISF
validated by CISF (Amendment and Validation)
Act, 1999 - No violation of natural justice or
statutory rules - Punishment proportionate to
charges of dereliction of duty and indiscipline -
B.C. Chaturvedi Vs U.O.I., H. VS Nirmala Vs
Karnataka St. Financial Corporation, and Ex
4 All. Mohd. Asgar Ali Vs. Union of India & Ors.
265
Sepoy Madan Prasad Vs U.O.I. relied upon.
(Para 16-19, 23-29)

Writ petition dismissed.

List of Cases cited:

## Text

264 INDIAN LAW REPORTS ALLAHABAD SERIES
is to be deposited by the Rent Authority in
a Saving Bank account opened by it in any
of the Nationalized Bank with due approval
of the Collector of the District and the Rent
Authority has been made solely responsible
for the proper and safe maintenance of such
account and the transactions therein. In the
opinion of the Court, the said mechanism
can very well be utilized for the purposes
of
accepting
the
pre-deposits
for
maintaining appeals before the Rent
Tribunal.

13. In view of the above the Court
finds no illegality or irregularity in the
impugned order dated 11.03.2024 directing
the pre-deposit of 50% payable amount
with the Rent Authority/Respondent No. 2
and file receipt in the Appeal u/s 35 of the
Act 2021 and only thereafter press the
Appeal warranting interference of this
Court under Article 226 of the Constitution
of India.

14. The Writ Petition lacks merit and
is accordingly dismissed.

15. However the Court finds that the
Rent Tribunal has fixed 02.04.2024 as the
date fixed for consideration of the Appeal
which falls beyond 30 days of the order of
the Rent Authority and there is every
likelihood of the order of the Rent
Authority being executed, under Section
36, even before the Appeal is heard. In
such circumstances the petitioner is granted
liberty to make the pre-deposit of 50% of
the total amount payable by the Demand
Draft No. 460797 dated 07.03.2024 obtain
the receipt thereof and file an application
seeking to prepone the date fixed by filing
an appropriate application in that regard. In
the eventuality of such an application being
made the learned District Judge/Rent
Tribunal Gautam Budh Nagar shall prepone
the date and proceed to entertain and hear
the Appeal on merits.
----------
(2024) 4 ILRA 264
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2024

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 4562 of 1998

Mohd. Asgar Ali ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
H.G.S. Parihar, Nakul Dubey, PC Misra,
Shivam Sharma

Counsel for the Respondents:
Rakesh Sharma, Deepanshu Dass, Dinesh
Kumar Pandey, IH Farooqui, Raj Kumar
singh, Sanjiv Srivastava

A.
Service
Law
-
Central
Industrial
Security Force (CISF) Rules, 1969 - Rule
7-A, Rule 29-A, Rule 34 - Constitutional
Law - Article 226 - Disciplinary Proceedings -
Natural Justice - Bias - Petitioner, a CISF
Constable, challenged removal order dated
04.12.1996, appellate order dated 01.08.1997,
and revisional order dated 24.06.1998 - Alleged
bias
of
Inquiry
Officer,
non-supply
of
documents, and lack of jurisdiction of Deputy
Commandant to appoint Inquiry Officer - Held,
Deputy Commandant competent as Disciplinary
Authority under Rule 7-A and Rule 29-A read
with Schedule II - No prejudice shown from
alleged bias or non-supply of documents -
Petitioner
participated
in
inquiry,
crossexamined witnesses, and received all requested
documents - Revisional powers of DG/CISF
validated by CISF (Amendment and Validation)
Act, 1999 - No violation of natural justice or
statutory rules - Punishment proportionate to
charges of dereliction of duty and indiscipline -
B.C. Chaturvedi Vs U.O.I., H. VS Nirmala Vs
Karnataka St. Financial Corporation, and Ex
4 All. Mohd. Asgar Ali Vs. Union of India & Ors.
265
Sepoy Madan Prasad Vs U.O.I. relied upon.
(Para 16-19, 23-29)

Writ petition dismissed.

List of Cases cited:

1. B.C. Chaturvedi Vs U.O.I.; (1995) 6 SCC 749

2. H. VS Nirmala Vs Karnataka St. Financial
Corporation; (2008) 7 SCC 639

3. St. Bank of India Vs Ram Das; (2003) 12 SCC
474

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

5. Haryana Financial Corporation Vs Kailash
Chandra Ahuja; (2008) 9 SCC 31

6. Burdwan Central Cooperative Bank Ltd. Vs
Asim Chatterjee; (2012) 2 SCC 641

7. Debotosh Pal Choudhary Vs Punjab National
Bank; (2002) 8 SCC 68

8. Ex Sepoy Madan Prasad Vs U.O.I.; 2023
LiveLaw (SC) 580

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Mr. Shivam Sharma,
learned Counsel representing the the
petitioner and Mr. Deepanshu Dass, learned
Counsel
representing
the
Union
of
India/respondents.

(2) The present writ petition came to
be filed by the petitioner in the year 1998
i.e. about 26 years ago, impugning order
dated
3/4.12.1996
(Annexure
No.1),
01.08.1997
(Annexure
No.2)
and
24.06.1998 (Annexure No. 3) and thereby
seeking his re-instatement in service with
all consequential benefits.

(3) Briefly stating, the petitioner was
appointed on the post of Constable in CISF
on 12.04.1987 and after training, he was
posted at CISF KCC Khetri, Rajasthan and
subsequently
he
was
transferred
to
PGUTPP, Uchahar Unit of CISF in the year
1991 and thereafter to Rae Bareli unit of
CISF on 10.08.1994. It has been claimed
that the petitioner was thereafter sent in
election duty in the month of April, 1996,
wherein a memorandum dated 09.06.1996
came to be issued to him. The said
memorandum inter-alia alleged that on
07.06.1996 between 21.00 Hours to 5.00
Hours, the petitioner's duty was assigned at
Quarter Guard and apparently, in the
midnight, the Company Hawaldar Major
checked the Quarter Guard as usual at
about 2:00 hours, wherein the petitioner
was found to be absent from the place of
duty and he was found sleeping with rifle
on his side in his room No. 22 and, as such,
on the instance of Surendra Rai and Suraj
Mani, the petitioner was woken from his
sleep and sought an explanation. However,
the petitioner failed to give any reply and
instead went back on his duty. It is stated
that the petitioner, after the service of the
aforesaid memorandum, gave his written
explanation on 09.06.1996.

(4) However, in the interregnum, the
petitioner was placed under suspension and
was also served with a charge-sheet on
23.06.1996 levelling charges on four
counts. The 1st being, he was found
sleeping on duty, which amounted to
dereliction of duty; the 2nd being hurling
abuses on colleagues and threatening them
on 10.06.1996 at about 2:30 hours, which
again amounted to violation of rules and
amounted to serious indiscipline; the 3rd
being his absence from the assigned duty at
the Hon'ble High Court of Allahabad on
12.05.1996, amounting to dereliction of
duty; and the 4th charge being absence
from
roll-call
parade
on
12.05.1996
266 INDIAN LAW REPORTS ALLAHABAD SERIES
amounting to defiance of orders of higher
authorities.

(5) The petitioner appears to have
given explanation to all the four charges.
However, it seems thereafter, one Mr. I.P
Singh, Inspector was appointed as Inquiry
Officer on 20.07.1996. Apparently, the
petitioner represented before his higher
authority for change the said Inquiry
officer, terming him to be an interested
person, which, however, came to be
rejected on 20.08.1996. The petitioner
alleged bias against the inquiry officer on
the ground that some earlier allegations
levelled against the petitioner by the same
said inquiry officer was found to be wrong
and he was also exonerated from the said
charges on the said earlier occasion. Thus,
the petitioner alleging the inquiry officer to
be biased sent several representations to his
higher officers but without any success.

(6) Records further reveal that after
the aforesaid failure to change the inquiry
officer, the petitioner went on to participate
in the said enquiry proceedings and the
department produced several witnesses,
including
PW-1(Surajmani),
PW-2(
Surendra Rai), Pw-4 (Subhas Ram), PW-5
(Chottey Rai), PW-6 (J.K. Hambram), PW7 ( L.D Joshi), who all were crossexamined by the petitioner. Thereafter, the
statement of the petitioner was recorded on
08.09.1998 and subsequently a copy of the
inquiry report was supplied to the petitioner
on 12.10.1998, giving him opportunity to
give his explanation against the said report.

(7) It appears that the petitioner gave
a representation against the said inquiry
report on 02.11.1996. However, it seems
that the said explanation did not find favour
with the competent authority and, as such,
the petitioner was punished by removal
from
his
service
vide
order
dated
04.12.1996. Against the said order of
removal from service, an appeal came to be
filed by the petitioner, which was also
rejected by the appellate authority vide
order dated 01.08.1997. Against the said
appellate order, the petitioner preferred a
revision, which was also rejected vide order
dated 24.06.1998.

(8) The learned Counsel for the
petitioner challenging all these three
impugned orders has taken several grounds
in the present petition, including (i) nonapplication of mind by the punishing
authority, (ii) inquiry officer being biased,
(iii) inquiry being conducted without
following the principles of natural justice,
(iv) the apparent prejudice of the inquiry
officer
Shri
I.P.
Singh,
(v)
nonconsideration of his several representation
for change in inquiry officer, (vi) refusal to
supply documents during inquiry, (vii)
inquiry not having been conducted in a fair
manner, (viii) absence of any presenting
officer during the departmental inquiry, (ix)
recording of the statement being not proper,
(x) non-consideration of the repetition of
the petitioner by the punishing authority,
(xi) order of removal being too excessive
and not being commensurate with the
gravity of charges levelled against him,
(xii) Rejection of appeal in a mechanical
manner, etc.

(9) During the course of hearing, a
legal objection of lack of jurisdiction of the
Deputy Commandant in terms of Rule 34
of the Central Industrial Security Rules,
1969 to appoint inquiry officer had been
pointed out by the petitioner by referring to
CISF Circular No.9/78, however, the same
was opposed by the learned counsel for the
respondents on the ground that no such
ground or pleading has been taken in the
4 All. Mohd. Asgar Ali Vs. Union of India & Ors.
267
writ petition. However, this Court vide an
order dated 08.12.2021 permitted the
petitioner to amend the writ petition.

(10) Further, the learned Counsel for
the petitioner referring to a letter dated
03.08.1998 of the CISF has submitted that
since the revisional powers under the CISF
Act, 1968 has been conferred to Central
Government only under Section 9(3) of the
CISF Act, 1968 and not to DG/CISF, the
said powers cannot be delegated to the
DG/CISF. He has pointed out to the
contents of the said letter, wherein it has
been suggested that an amendment be made
in the CISF Act, 1968 to bring in
conformity with the provisions of Rule 49
of the CISF Rules, 1969, thereby giving
revisional powers to DG/CISF. According
to the learned Counsel, since the revision
filed by the petitioner has not been
considered/dismissed
by
the
Central
Government, the said impugned dismissal
is without any authority and the same is
liable to be set-aside.

(11) Per contra, the learned Counsel
for the respondent has contended that the
petitioner was on election duty when the
various acts of misconduct were committed
by him and at that point of time, Shri S.H.
Ansari, Dy. Commandment of CISF, TSL
Naini was his overall in-charge. Further, it
has been stated that as far as circular No.
9/78, wherein it has been observed that
"Disciplinary Authority" used in sub Rule
(4) of Rule 34 of the CISF Rules, 1969
would only imply, the appointing authority
is concerned, besides the point that the
petitioner had not taken the said ground
before the Appellate authority, revisional
authority or the present writ petition, the
explanation to Rule 34(2) clearly stated that
the term "Disciplinary Authority" shall
include the authority competent under the
said rules to impose upon the member of
the Force any of the penalties specified in
clause (e) to (h) of Rule 31. According to
him, the Disciplinary authority is the Dy.
Commandant, who is also well competent
to issue charge-sheet and as such appoint
Inquiry officer within the meaning of subrule 1(4) of Rule 34 of CISF Rules, 1969.
As regards the Circular dated 03.08.1998, it
has been contended by the learned Counsel
for the respondents that no doubt, the
revisional powers under CISF Act had been
conferred on Central Government only
under Section 9(3) of the CISF Act, 1968
and not DG, CISF, however, the said stands
amended with retrospective effect in the
CISF Act, 1968 vide amendment act
namely "the CISF (Amendment and
validation) Act, 1999 dated 29.12.1999
vide section 6 read with section 10 of the
said Act of 1999.

(12) As far as the merits of the present
writ petition is concerned, it has been
contended that the petitioner has been
subjected to a fair trial, which he has
participated and the punishment inflicted
was
commensurate
to
the
various
allegations levelled against him, which
were found to be true. It has been submitted
that
there
was
no
irregularity
in
appointment of Inquiry Officer, all the
documents have been duly supplied to the
petitioner as is apparent from the records
itself and there is no bias in the inquiry held
by the inquiry officer. It has been further
contended
that
mere
allegations
of
irregularity in disciplinary proceeding, is
not sufficient and the petitioner has failed
to show as to how prejudice is caused to
him and all those pleas which have not
been taken by the petitioner may be
deemed to have been taken and rejected. It
was also submitted that the punishment
should not be ordinarily interfered by this
268 INDIAN LAW REPORTS ALLAHABAD SERIES
Court as has been held in several
Judgments passed by this Court as well as
the Hon'ble Supreme Court. Thus, he has
submitted for rejection of the present writ
petition as being without merits.

(13) Having heard the submissions of
the parties, this Court is of the view that the
present petition seeking quashing of the
dismissal order as well as the order in
appeal and revision has been challenged by
the petitioner primarily for two reasons.
The first being that the petitioner has sent
representations to the higher authorities for
change in the inquiry officer on the ground
that he is biased, however, the same was
not allowed and second that opportunity to
defend was not adequately provided to the
petitioner as document were not supplied to
him. Further a ground, although not taken
in the writ petition but subsequently
amendment by the petitioner is relating to
the implication of Rule 34(4) of the extant
rules, which provides that the appointing
authority is the only competent authority to
appoint
an
inquiry
officer
for
a
departmental proceeding.

(14) Although, this Court is premised
to examine the various grounds agitated by
the petitioner for preferring the present writ
petition, however this Court is reminded of
the limited jurisdiction in entertaining this
kind of petition as has been laid down by a
larger bench of the Hon'ble Apex Court in
the case of B.C. Chaturvedi Vs. Union of
India and others: (1995) 6 SCC 749,
wherein a three Judge Bench of the Apex
Court held in paragraph-12 as under :-

"Judicial review is not an appeal
from a decision but a review of the manner
in which the decision is made. Power of
judicial review is meant to ensure that the
individual receives fair treatment and not
to ensure that the conclusion which the
authority reaches is necessarily correct in
the eye of the Court. When an inquiry is
conducted on charges of misconduct by a
public servant, the Court/Tribunal is
concerned to determine whether the inquiry
was held by a competent officer or whether
rules of natural justice are complied with.
Whether the findings or conclusions are
based on some evidence, the authority
entrusted with the power to hold inquiry
has jurisdiction, power and authority to
reach a finding of fact or conclusion. But
that finding must be based on some
evidence. Neither the technical rules of
Evidence Act nor of proof fact or evidence
as defined therein, apply to disciplinary
proceeding. When the authority accepts
that evidence and conclusion receives
support
therefrom,
the
disciplinary
authority is entitled to hold that the
delinquent officer is guilty of the charge.
The Court/Tribunal in its power of judicial
review does not act as appellate authority
to re- appreciate the evidence and to arrive
at its own independent findings on the
evidence. The Court/Tribunal may interfere
where
the
authority
held
that
the
proceedings against the delinquent officer
in a manner inconsistent with the rules of
natural justice or in violation of statutory
rules prescribing the mode of inquiry or
where the conclusion or finding reached by
the disciplinary authority is based on no
evidence. If the conclusion or finding be
such as no reasonable person would have
ever reached, the Court/Tribunal may
interfere with the conclusion or the finding,
and mould the relief so as to make it
appropriate to the facts of each case."

(15) Keeping in view the judicial
limitation as propounded by the Hon'ble
Apex Court, this Court finds that the
present writ petition has a chequered
4 All. Mohd. Asgar Ali Vs. Union of India & Ors.
269
history of being pending since the last more
than twenty-six years. A close scrutiny
would reveal that this writ petition was
dismissed for non-prosecution on at least 5
different
occasions
on
06.02.2009,
05.03.2009, 10.03.2010, 13.12.2013 and
09.03.2018. Apparently one of the reasons
for pendency of this writ petitions for such
a long year is due to lack of diligence in
pursuing the present writ petition by the
petitioner. However, the delay in pendency
of this writ petition would not hold back
this Court in adjudicating the present writ
petition on its own merits, keeping in view
the grounds agitated by the contesting
parties.

(16) As far as the ground agitated by
the petitioner relating to implication of
Rule 34(4) of the 1969 Rules, to contend
that the appointing authority is only
competent to appoint the enquiry officer,
this court finds that Rule 29-A of the CISF
Rules, 1969, inter-alia states that

"The disciplinary authority in
respect of a member of the Force for the
purpose of imposing any particular penalty
or the passing of any disciplinary order
shall be the authority specified in this
behalf in Schedule II under whose
administrative control of the member is
serving and shall include any authority
mentioned in the said schedule superior to
such authority".

(17) Apparently, the petitioner was
posted as a Constable under the supervision
and authority of unit head i.e the Deputy
Commandant and was in election duty and
as such as per rule 29A read with Schedule
II of the Rules, the Dy. Commandant being
the
unit
head
and
within
whose
administrative control the petitioner was
serving, was the competent disciplinary
authority. Further, Rule 7A of the extant
rules prescribes the duties of a Deputy
Commandant as follows:

"7-A.
Duties
of
Deputy
Commandant
-
(1)
The
Deputy
Commandant shall assist the Commandant
in the discharge of his duties; and where he
is placed as head of the unit, he shall
discharge all the duties of a Commandant
and shall exercise only those financial
powers that are delegated to him under the
relevant rules.

(2) The Deputy Commandant
shall be responsible for the efficiency,
discipline, and morale of the personnel
under him and shall also be responsible for
the security of the undertaking or its part
entrusted to him."

(18) This Court finds that the use of
the word 'discipline' in rule 7A sub-rule (2)
sufficiently
indicate
that
the
Deputy
Commandant
is
responsible
for
the
discipline of the personnel under him and
since he is responsible for the discipline for
the said personnel as a corollary, he is also
competent to take such measures as may be
prescribed by law to ensure that the
discipline is enforced. Thus, this Court has
no hesitation in holding that the Deputy
Commandant in view of the provisions of
Rule 7-A read with rule 29A of the Rules,
1969, was the sole person responsible for
the discipline of those under him including
the petitioner and as being the head of the
unit
concerned
is
the
appropriate
Disciplinary Authority and is to exercise all
the powers and duties of Commandant
except such financial powers as are not
delegated to him.

(19) Additionally, this Court cannot
be oblivious to the fact that the petitioner
has not raised this objection as to
270 INDIAN LAW REPORTS ALLAHABAD SERIES
procedural irregularity either during the
inquiry or during the appeal or during the
statutory revision preferred by him. Even
before this Court, the aforesaid ground has
been sought to be introduced by way of
amendment after 22/23 years of filing of
the present writ petition. In any case, there
are two ways in which the contravention of
rules in appointment of the inquiry officer
may be flagged by the delinquent officer,
the first being during the inquiry itself and
the second being after the inquiry, provided
that the delinquent officer is able to show
as to how the said appointment has caused
prejudice to his rights. Admittedly, the
petitioner in the present case during the
inquiry did not flag the irregularities in
appointment of the inquiry officer and at
the later stage, although a ground had been
taken after 22/23 years of filing of the
present writ petition, however there is
absolutely no ground nor any iota of
mention as to how the same has caused
prejudice to the petitioner. Further, this
Court finds that the petitioner has not only
participated in the proceedings but has also
cross-examined almost seven departmental
witnesses and relied on several documents
during the departmental proceedings. There
had been no report of biasness by the
petitioner during the said proceedings.

(20) It would be appropriate at this
stage, to quote few paragraphs from the
judgment of the Hon'ble Apex Court,
which are relevant to the present context.
The Apex Court in the case of H.V.
Nirmala vs Karnataka State Financial
Corporation and Ors. : (2008) 7 SCC 639
observed as follows :-

10. Appellant did not raise any
objection in regard to the appointment of
the Enquiry Officer. He participated in the
enquiry proceeding without any demur
whatsoever. A large number of witnesses
were examined before the Enquiry Officer.
They
were
cross-examined.
Appellant
examined witnesses on her own behalf.
Learned Single Judge as also the Division
Bench of the High Court opined that the
appellant has failed to establish that any
prejudice has been caused to her by reason
of appointment of a Legal Advisor as an
Enquiry Officer and as the appellant has
participated in the enquiry proceeding, she
could not be permitted to raise the said
contention.

11. Mr. Patil, however, would
submit that such a contention which goes to
the root of jurisdiction can be urged at any
stage. We do not agree. Appointment of an
incompetent enquiry officer may not vitiate
the entire proceeding. Such a right can be
waived. In relation thereto even the
principle of Estoppel and Acquiescence
would apply.

12. In State Bank of India vs.
Ram Das: (2003) 12 SCC 474 this Court
held ( SCC P.484, Para 27) :

"It is an established view of law
that where a party despite knowledge of the
defect in the jurisdiction or bias or malice
of an arbitrator participated in the
proceedings without any kind of objection,
by his conduct it disentitles itself from
raising such a question in the subsequent
proceedings. What we find is that the
appellant despite numerous opportunities
made available to it, although it was aware
of the defect in the award of the umpire, at
no stage made out any case of bias against
the umpire. We, therefore, find that the
appellant cannot be permitted to raise the
question of bias for the first time before this
Court."

(21) That the next ground agitated by
the petitioner was regarding the bias in the
whole process of inquiry by the inquiry
4 All. Mohd. Asgar Ali Vs. Union of India & Ors.
271
officer. The petitioner has contended that
the inquiry officer Shri I.P. Singh was
biased as he had already called explanation
of the petitioner while he was posted as
Company Commander on 24.03.1996, to
the effect that he was absent from P.T.
parade and the petitioner was directed to
submit reply within 24 hours failing
which disciplinary proceedings were to
be initiated against him and on the basis
of explanation called by Shri I.P. Singh
proceedings
were
initiated,
which
eventually came to be dropped and he
was exonerated. Thus, it has been
contended by Shri I.P. Singh, Inspector
that since he was appointed as inquiry
Officer to inquire into the charges framed
against the petitioner within the meaning
of sub-rule 1(4) of Rule 34 of CISF
Rules, 1969, he was bound to be bias
because of the earlier proceedings.

(22) This Ccourt has already held
that the appointment of inquiry officer in
the case of petitioner was in accordance
with the provisions of Rules governing
disciplinary proceedings. Further, from
records of the present case, it is available
that the petitioner has replied in negative
regarding
any
objection
to
the
appointment of inquiry officer Shri I.P.
Singh during the inquiry proceedings.
This Court also finds that the inquiry
officer
Shri
I.P.
Singh
has
no
administrative control over the petitioner.
Furthermore, Shri I.P. Singh was neither
a prosecution witness nor a defence
witness and in no way was related to the
inquiry proceedings.

(23) The well-established canons
controlling the field of bias in service
jurisprudence can reasonably extended to
the element of prejudice as well in such
matters. Prejudice de facto should not be
based on a mere apprehension or even on a
reasonable suspicion. It is important that
the element of prejudice should exist as a
matter of fact or there should be such
definite inference of likelihood of prejudice
flowing from such default, which relates
statutory
violations.
It
will
not
be
permissible to set aside the departmental
inquiries in any of these classes merely on
the basis of apprehended prejudice. In the
present case, no instances of proved bias
have been pleaded by the petitioner in the
present writ petition or shown from the
records of the present case. Thus, this Court
finds no basis for any bias or prejudice in
appointment of the inquiry officer Shri I.P.
Singh in the inquiry proceedings.

(24) The next ground taken by the
petitioner is relating to not having been
provided with reasonable opportunity to
defend his case in the departmental
proceedings on the ground that all the
documents have not been supplied to him.
This Court finds that it would be profitable
to quote a very celebrated judgment of the
Hon'ble Supreme Court on the aspect of
providing reasonable opportunity to a
delinquent
officer
in
a
departmental
proceeding. The Hon'ble Apex Court in the
case reported as Managing Director,
ECIL, Hyderabad Vs. B. Karunakar :
(1993) 4 SCC 727 held that 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 neither incantation 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 denial of report to him, has to be
considered on the facts and circumstances
of each case. The Apex Court has clarified
even the stage to which the departmental
272 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings ought to be reverted in the
event the order of punishment is set aside
for these reasons.

(25) Further, it will be useful to refer
to the judgment of Apex Court in the case
of Haryana Financial Corporation v.
Kailash Chandra Ahuja : 2008 (9) SCC
31 at page 38 where the Court held as
under :-

"From the ratio laid down in B.
Karunakar it is explicitly clear that the
doctrine of natural justice requires supply
of a copy of the inquiry officer's report to
the delinquent if such inquiry officer is
other than the disciplinary authority. It is
also clear that non- supply of report of the
inquiry officer is in the breach of natural
justice. But it is equally clear that failure to
supply a report of the inquiry officer to the
delinquent employee would not ipso facto
result in the proceedings being declared
null and void and the order of punishment
non-est and ineffective. It is for the
delinquent employee to plead and prove
that non- supply of such report had caused
prejudice and resulted in miscarriage of
justice. If he is unable to satisfy the court
on that point, the order of punishment
cannot automatically be set aside."

(26) Further, there is another aspect of
the matter. The petitioner by merely putting
allegations of irregularity in disciplinary
proceedings
cannot
escape
his
responsibility to show that prejudice has
been caused to him by the same. In the case
of Burdwan Central Cooperative Bank
Limited & Anr. Vs. Asim Chatterjee &
Ors., (2012) 2 SCC 641, the Hon'ble
Supreme Court held that

"However, there is one aspect of
the matter which cannot be ignored. In B.
Karunakar's case (supra), despite holding
that non-supply of a copy of the report of
the Inquiry Officer to the employee facing a
disciplinary proceeding, amounts to denial
of natural justice, in the later part of the
judgment it was observed that whether in
fact, prejudice has been caused to the
employee on account of non-furnishing of a
copy of the inquiry report has to be
considered in the facts of each case. It was
observed that where the furnishing of the
inquiry report would not make any
difference to the ultimate outcome of the
matter, it would be a perversion of justice
to allow the concerned employee to resume
his duties and to get all consequential
benefits. It was also observed that in the
event the Inquiry Officer's report had not
been furnished to the employee in the
disciplinary proceedings, a copy of the
same should be made available to him to
enable him to explain as to what prejudice
had been caused to him on account of nonsupply of the report. It was held that the
order of punishment should not be set aside
mechanically on the ground that the copy
of the inquiry report had not been supplied
to the employee. This is, in fact, a case
where the order of punishment had been
passed against the Respondent No.1 on
allegations of financial irregularity. Such
an
allegation
would
require
serious
consideration as to whether the services of
an
employee
against
whom
such
allegations have been raised should be
retained in the service of the Bank. Since a
Bank act in a fiduciary capacity in regard
to people's investments, the very legitimacy
of the banking system depends on the
complete integrity of its employees. As
indicated hereinbefore, there is a live-link
between
the
Respondent
No.1's
performance as an employee of the Samity,
which was affiliated to the Bank, and if the
Bank was of the view that his services
4 All. Mohd. Asgar Ali Vs. Union of India & Ors.
273
could not be retained on account of his
previous mis-demeanour, it is then that the
second part of B. Karunakar's case (supra)
becomes
attracted
and
it
becomes
necessary for the court to examine whether
any prejudice has been caused to the
employee or not before punishment is
awarded to him. It is not as if the Bank
with an ulterior motive or a hidden
agenda dismissed the Respondent No.1
from service, in fact, he was selected and
appointed in the Appellant-Bank on
account of his merit and performance at
the time of interview. It cannot be said
that the Bank harboured any ill-feeling
towards the Respondent No.1 which
ultimately resulted in the order of
dismissal passed on 8th May, 2010. We,
therefore, repeat that since no prejudice
has been caused to the Respondent No.1
by the non-supply of the Inquiry Officer's
report, the said Respondent had little
scope to contend that the disciplinary
proceedings had been vitiated on account
of such non-supply."

(27) Having traced the law on the
issue, it would be apt to record that it is
an admitted fact as stated in para 9 of the
Counter Affidavit that the petitioner was
supplied all documents requested by him
vide his application dated 20.08.1996,
and the same is also evident from the
petitioner's own receiving in his own
hand-writing dated 21.08.1996 on his
said
application.
Furthermore,
the
petitioner during the inquiry has admitted
that he had received all documents sought
by him and as is apparent from para 19 of
the counter affidavit that the delinquent
petitioner was also allowed inspection of
all records. The Apex Court in the case of
Debotosh Pal Choudhary Vs Punjab
National Bank & Ors. : (2002) 8 SCC 68,
inter-alia held

"5. The petitioner had been given
documents for inspection as per the list
given by the Presenting Officer and he
made a statement on 18.7.1988 that he
had verified all the documents and papers
and inspected the documents as per the
list given in the letter dated 24.5.1988.
The Inquiring Authority allowed the
petitioner to file a list of documents and
as sought for by his letter dated
24.5.1988, the request for inspection or
copies was also allowed. It is thereafter
the Enquiry Officer has relied upon the
documents produced by the Presenting
Officer
and
adverted
to
various
documents produced by the petitioner as
well. Therefore, the contention of the
petitioner that he did not have reasonable
opportunity to inspect the documents is
incorrect."

(28) Additionally, in the present
writ petition, the petitioner was not able
to point out as to which document was
not provided to him in the department
proceedings. The contention of the
petitioner relating to non-supply of
documents, in the absence of any specific
enumeration, is devoid of merits and as
such the present ground of the petitioner
fails.

(29) Admittedly, the petitioner was a
member
of
disciplined
armed
force,
namely, Central Industrial Security Force
but had acted in a most reprehensible
manner, which is unexpected from a
member of disciplined force. If the
character of a cop is found to be
unsatisfactory, it would be perilous in
public interest to allow him continue in
public service. Recently, the Hon'ble
Supreme Court in the case of Ex Sepoy
Madan Prasad Vs Union of India and
Others [2023 Livelaw (SC) 580] has held
274 INDIAN LAW REPORTS ALLAHABAD SERIES
that discipline is the implicit hallmark of
armed
forces
and
a
non-negotiable
conditions of service.

(30) Having regard to the aforesaid
facts and circumstances of the case, what
this Court find is that learned counsel for
the petitioner has failed to point out any
illegality, perversity or ambiguity in the
orders under challenge so as to warrant the
indulgence of this Court under Article 226
of the Constitution of India.

(31) In view of the aforesaid, this
Court do not find any justifiable ground to
exercise
extraordinary
jurisdiction
to
interfere with the orders impugned and as
such, the present writ petition, being devoid
of merits, is dismissed.

(32) However, in the facts of the
present case, there shall be no order as to
costs.
----------
(2024) 4 ILRA 274
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.04.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 4827 of 2022

Chhavi Ram ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Avinash Tiwari, Anuj Kumar Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Qualifying Service
for Pension and Validation Act, 2021 -
Minimum Pay Scale for Daily Wagers -
Petitioner, a daily wager appointed in 1990,
sought minimum pay scale and increments from
1990 to regularization in 2002 - Challenged
rejection order dated 19.05.2022 - Held, daily
wagers entitled to minimum pay scale of regular
employees for same post, as per Sabha Shanker
Dube Vs Divisional Forest Officer - Petitioner
entitled to minimum pay scale from 1994 (three
years prior to filing Writ A No. 2023 of 1997) till
regularization on 25.02.2002 - Increments not
permissible as per St. of U.P. Vs Puttilal, which
prevails over Gyan Prakash Srivastava Vs St. of
U.P. - Claim for counting daily wage service for
pension subject to challenge of vires of Act,
2021, as per Ram Das Yadav Vs St. of U.P. -
Impugned order quashed, respondents directed
to pay minimum pay scale with arrears. (Para
13, 16-19)

Writ petition partly allowed.

List of Cases cited:

1. Sabha Shanker Dube Vs Divisional Forest
Officer; (2019) 12 SCC 297

2. St. of U.P. Vs Puttilal; (2006) 9 SCC 337

3. St. of Haryana Vs Tilak Raj; (2003) 6 SCC 123

4. St. of Punjab Vs Surjit Singh; (2009) 9 SCC
514

5. St. of Punjab Vs Jagjit Singh; (2017) 1 SCC
148

6. Gyan Prakash Srivastava Vs St. of U.P.; Writ
Petition
No.
5923
(SS)
of
1996,
dated
18.10.2016

7. Ram Das Yadav Vs St. of U.P.; Writ Petition
No. 25955 (SS) of 2017, dated 08.11.2021

8. Habib Khan Vs St. of Uttarakhand; Civil
Appeal No. 10806 of 2017, dated 23.08.2017

9. Prem Singh Vs St. of U.P.; (2019) 10 SCC 516

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

1. Heard learned counsel for the
petitioner and Shri Saharsh Shrivastav,