# Mohd. Ayub Khan v. U.P. State Road Transport Corp. Ltd. & Ors

- **Citation:** (2020) 6 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** WRIT A No. 806 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ayub-khan-v-u-p-state-road-transport-corp-ltd-ors-45336
- **Pages:** 6

## Headnote

804 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Vivek Saran, Sri Anuj Srivastava, S.C., Sri
Sunil Kumar Mishra

A. Punishment - Inquiry Report - Effect of
its
being
non-speaking
-
Legality
of
proceeding - An inquiry report which is
nonspeaking, if has not discussed evidence
and material before it and simply recorded its
conclusions, it is no inquiry report in the eyes
of law and is vitiated - Since petitioner has
been held guilty of all the six charges without
showing any evidence and without any
discussion, entire proceedings are vitiated in
law. (Para 12 and 16)
Writ Petition allowed (E-1)
Cases relied on :-

## Text

6 All. Mohd. Ayub Khan Vs. U.P. State Transport Corp. Ltd. & Ors. 803
application in view of Explanation (i) to
the Fourth Proviso to Section 21(1) of
Act,1972 as he has acquired alternative
accommodation in a vacant state and held
that the release of a residential building
for a commercial purpose is barred by
clause (ii) of the Third Proviso to Section
21(1) of Act,1972.

26. In the present case, it is
established from the pleadings of the
respondent that the disputed property is
residential and its release is sought for
commercial purpose. Therefore, in the
light of principles laid down in the
aforesaid judgements which are binding
precedent, this Court finds substance in
the argument of counsel for the petitioner
that
residential
building
cannot
be
released for commercial purposes.

27. The judgement of this Court in
the case of Dr Piyush Kumar Chaturvedi
(supra) relied upon by the appellate court
is not applicable in the facts of the present
case since the said judgement has not
considered the effect of the Clause (ii) to
the Third Proviso to Section 21 (1) of the
Act, 1972 which prohibits the court from
entertaining an application for release of a
residential
building
for
commercial
purpose.

28. The other two judgements i.e.
Shanti Devi & Others Vs. Swami
Asthanand and Others 2003 (2) SCC 26
and Harrington House School Vs. S.M.
Ispahani and Others 2002 (5) SCC 229
relied upon by the appellate court were
not the cases where the release of a
residential building was sought for
commercial purpose and the tenant had
set up the defence that the release
application was barred by Clause (ii) of
the Third Proviso to Section 21(1) of the
Act,1972. Therefore, the aforesaid two
judgments having been rendered in a
different
factual
context
are
not
applicable in the present case and
appellate court has erred in placing
reliance on the said judgments.

29. Since this court has held that the
release application is barred by Clause (ii)
to the Third Proviso to Section 21(a) of
the Act,1972, therefore, this court does
not find it necessary to consider the other
submissions of the counsel for the
petitioner
challenging
the
impugned
order.

30. Thus, for the reasons given
above, the order of the appellate court
dated 05.12.2015 in P.A. Appeal No.20 of
2009 allowing the release application
cannot be sustained and is accordingly,
set aside.

31. Consequently, the writ petition is
allowed with no order as to costs.

----------

(2020)06ILR A803
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

WRIT A No. 806 of 2007

Mohd. Ayub Khan ...Petitioner
Versus
U.P. State Road Transport Corp. Ltd. &
Ors. ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaubey, Sri R.K.S. Chauhan

Counsel for the Respondents:
804 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Vivek Saran, Sri Anuj Srivastava, S.C., Sri
Sunil Kumar Mishra

A. Punishment - Inquiry Report - Effect of
its
being
non-speaking
-
Legality
of
proceeding - An inquiry report which is
nonspeaking, if has not discussed evidence
and material before it and simply recorded its
conclusions, it is no inquiry report in the eyes
of law and is vitiated - Since petitioner has
been held guilty of all the six charges without
showing any evidence and without any
discussion, entire proceedings are vitiated in
law. (Para 12 and 16)
Writ Petition allowed (E-1)
Cases relied on :-
1. Anil Kumar Vs Pres. Officer & ors.; AIR
(1985) SC 1121
2. Special Appeal No. 1196 of 1999 (Commt.
of Mang. Vs Abdul Cadeer @ Abdul Qadir &
ors.) decided on 14.07.2006
3. Special Appeal No. 533 of 2004 (Chandra
Pal Singh & ors. Vs Mang. Director, U.P. Cooperative Federation & ors.) decided on
12.10.2006
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition under Article 226
of Constitution of India has been filed by
petitioner Mohd. Ayub Khan praying for
issue of a writ of certiorari to quash order
dated 30.04.2002 (Annexure 9 to the writ
petition) passed by Regional Manager, U.P.
State
Road
Transport
Corporation
(hereinafter referred to "RM,UPSRTC")
imposing punishment of recovery of
Rs.1,40,876/- and denial of full salary paid
during period of suspension except amount
of subsistence allowance, already paid and
order dated 11.10.2006 (Annexure 15 to the
writ petition) passed by Managing Director,
U.P.State Road Transport Corporation
(hereinafter referred to as "MD, UPSRTC")
dismissing petitioner's appeal.

2. The facts in brief giving rise to
present writ petition are that petitioner was
appointed as Senior Clerk in U.P. State
Road Transport Corporation (hereinafter
referred to as "UPSRTC") and posted at
Civil Lines, Allahabad Depot. He was
placed under suspension vide order dated
09.10.2001 (Annexure 1) in a contemplated
disciplinary proceeding. A preliminary
inquiry was conducted and in the report
dated 20.09.2001, four persons including
petitioner
were
held
prima
facie
responsible. Consequently, a charge sheet
dated 29.10.2001 was issued by RM,
UPSRTC levelling following six charges
upon petitioner :

^^1- fMiksa fVdV Hk.Mkj ls ekxZ i=
la0 8488001 ls 8488500 rd izkIr djus ds
ckn ekxZ i= 8488051 ls 848800 rd xk;c
djus]

2- fMiks LVkd ls izkIr fd;s x;s ekxZ
i=ksa esa ls ,d iSM ekxZ i= xk;c dj >wBh
lwpuk nsus]

3- ekxZ i= xk;c dj ifjogu fuxe
dks :0 5]63]504@& dh vkfFkZd {kfr igqapkusA

4- Hkz"Vkpkj esa lafyIr jgusA

5- drZO;ksa ,oa nkf;Roksa ds fuokZgu esa
iw.kZ :i ls foQy jgus

6- deZpkjh vkpkj lafgrk ds foijhr
dk;Z o vkpj.k djusA**

3. Disciplinary Authority referred to
only preliminary inquiry report dated
20.9.2001 as evidence sought to be relied
in
support
of
charges.
Petitioner
submitted reply and denied all the
charges.
Thereafter,
Enquiry Officer
submitted report (Annexure 7 to writ
petition) holding all the charges proved.
Agreeing with inquiry report, disciplinary
6 All. Mohd. Ayub Khan Vs. U.P. State Transport Corp. Ltd. & Ors. 805
authority i.e. RM, UPSRTC supplied
copy of inquiry report to petitioner vide
letter dated 01.4.2002 and directed to give
his explanation, if any, and also to show
cause why penalty of 'Removal' from
service, denial of full salary during period
of
suspension
and
recovery
of
Rs.1,40,876/- be not imposed upon
petitioner.

4. Petitioner submitted reply to
show cause notice. Thereafter order of
punishment was passed on 30.04.2002
whereby disciplinary authority i.e. RM,
UPSRTC confined punishment only to
the extent of recovery of Rs.1,40,876/-
and denial of full salary during period of
suspension except subsistence allowance,
already paid. Petitioner preferred appeal
but the same has been rejected vide order
dated 11.10.2006.

5. I have heard Sri S.K.Chaubey,
learned counsel for petitioner, Sri Sunil
Kumar Mishra, learned counsel for
respondents and perused the record.

6. Learned counsel for petitioner
submitted that enquiry report is wholly
non-speaking
and
unreasoned
one,
inasmuch as, six charges were levelled
against petitioner but Enquiry Officer has
not
discussed
individual
charges,
evidences relied in support thereof as also
petitioner's defence and instead, in a
surreptitious and abrupt manner, all the
charges have been held proved.

7. Learned counsel appearing for
UPSRTC though sought to support orders
impugned I
n
present
writ
petition
but
when
questioned, find it difficult to show as to
how Enquiry Officer has found each
charge proved and also could not show as
to what evidence was relied to hold all the
said charges proved.

8. Entire findings in respect of six
charges recorded by Enquiry Officer read
as under :

^^eSaus ekeys dh fjiksVZ i=koyh
miyC/k leLr dkxtkrsa vfHkys[kksa mRrj rFkk
tkap ds le; fd;s x;s iz'uksa dk Hkyh Hkkafr
voyksdu ,oa ifj'khyu fd;k x;k rks Jh v;wc
us vius vkj{kh dks ekxZ i=ksa ds iSMksa dh la[;k
dgka ls dgka rd ,d NksVs dkxt ds VqdMs ij
fy[kdj fpidk;k jgrk Fkk rFkk mDr lhYM
c.Myksa ds Åij fpidk;s x;s dkxt ds VqdMs
ij fy[ks x;s fVdVksa dh /kujkf'k ij ,oa la[;k
dgka lsa dgka rd ekxZ i= la[;k ds c.Myksa esa
fcuk x.kuk fd;s bZ'kw dj fn;k tkrk gSA ekxZ
i=ksa ds [kksy dj gh b'kw fd;k tkrk gSA Jh
fpUrkef.k us vius mRrj esa n'kkZ;k fd fnukad
18-4-2001 dks lEcfU/kr ekxZ i= ds 10&10 ds
pkj c.My fn;s x;s FksA tks fMiks fVdV Hk.Mkj
ds iaftdk esa 40 pkyhl ekxZ i= vafdr fd;k
x;kA udoh us vius mRrj esa n'kkZ;k fd
ijEijkxr }kjk iSM c.My ,oa ekxZ i= fuxZr
fd;kA fnukad 9-5-2001 dks ekxZ i= la0
8488001 ls 84885003⁄4 nl iSM c.My esa fuxZr
fd;k x;k fnukad 9-5-2001 dks ekxZ i= la0
8488001 ls 8488500 rd ds 10 iSM c.My esa
lEcU/k de ik;s tkus dh lwpuk eq>dks rFkk
pUnzHkku jke ofj"B dsUnz izHkkjh dks nsus ij
muds }kjk jksdus dk vkns'k fn;kA Jh pUnzHkku
us Hkh vius mRrj esa ;g n'kkZ;k fd ekxZ i=
la0 8488001 ls 8488100 rd iSM c.My esa
de ik;s tkus dh lwpuk mlh fnu Jh v;wc
fyfid }kjk fn;k x;kA lgk;d {ks=h; izcU/kd
1⁄4foRr1⁄2 fjiksVZ drkZ us vius mRrj esa ;g voxr
djk;k fd {ks=h; fVdV Hk.Mkj esa c.Myksa esa
jD[ks gq, ekxZ i= ,oa fVdVksa dks fxuuk
deZpkfj;ksa dh deh ds dkj.k lEHko ugh gS fQj
Hkh ikjn'khZ iSfdax gksus ds dkj.k tkjh djrs
le; fxudj gh fn;k tkrk gSA bl lEcU/k esa
eq[;ky; ds }kjk tkjh fu;ekoyh esa tkap
fjiksVZ esa mYys[k esa Li"V fd;k gqvk gS fd
806 INDIAN LAW REPORTS ALLAHABAD SERIES
{ks=h; Hk.Mkj ls izkIr fd;s x;s ekxZ fVdVksa dks
Hkyh Hkkafr fxuk tk;sxk Jh oekZ lgk0 {ks0
izcU/kd us vius mRrj esa n'kkZ;k fd eSaus 7
vxLr 2001 dks dk;ZHkkj xzg.k fd;k x;k gSA
;g Hkh voxr djk;k fd dk;ZHkkj xzg.k ds
i'pkr ofj"B dks izHkkjh ys[kk us vius i= esa
lEidZ Jh v;wc us vius mRrj esa ;g n'kkZ;k
;g Lohdkj fd;k gS fd 9-5-2001 dks ekxZ i=
la0 8488001 ls 8488500 ds ekxZ i= dk iSM
izkIr fd;k Fkk lkFk gh Hk.Mkj jftLVj esa
gLrk{kj Hkh fd;k FkkA tcfd ekxZ i= lQsn
ikyhFkhu iSfdax esa iSd jgrk gS lwpuk ,drk
i= esa 10 ekxZ i= ds iSM gksrs gSa tks fcuk izkIr
gq, Hkh djk;h ls fxuk o ns[kk tk ldrk gSA
fd mDr iSDM c.My esa 10 ekxZ i= gS vFkok
ugha ;fn de ik;k tkrk gS rks mlh le;
Hk.Mkj fyfid ls izkIr gh ugha djuh pkfg,
FkkA tks fd Jh v;wc }kjk u djds ekxZ i= ds
c.My ds Åij fy[kk uEcj dks ns[kdj izkIr
fd;k x;kA

vr% mijksDr foospuk ls ;g Li"V gS
fd Jh eks0 v;wc [kka 1⁄4fo01⁄2 ofj"B fyfid
flfoy ykbu fMiksa }kjk fMiks Hk.Mkj ls ekxZ
i= bZ'kw djrs le; c.My ij fpidk;s x;s
fLyi ds vuqlkj izkIr dj fy;k mls feyk ugha
vkSj e.My ykdj [kksy fn;kA tcfd ekxZ i=
ds iSDM c.My o lQsn ikyhFkhu ds ikjn'khZ
iSd esa iSd jgrk gS ftls vklkuh ls fxuk tk
ldrk gSA ,slk Jh v;wc [kka }kjk ugha fd;k
x;kA vr,o Jh v;wc fyfid ij yxk;s x;s
jktLo vkjksi fla) ik;s tkrs gSa ftlds fy;s Jh
eks0 v;wc 1⁄4fo01⁄2 dk;Z fyfid nks"kh gSaA**
(Emphasis Added)

9. First charge levelled against
petitioner is that he is responsible for
missing
Way
Bills
No.8488051
to
8488100
after
receiving
Way
Bill
No.8488001 to 8488500 from Depot
Ticket Store. The third charge state that
by causing loss to aforesaid Way Bills, he
has caused loss to UPSRTC to the extent
of Rs.5,63,504. Charges 1 and 3 are
connected with each other and basically
state that petitioner is responsible for
disappearance of 50 tickets and thereby
caused loss of Rs.5,63,504/- to UPSRTC.
Annexure 5 to writ petition i.e. Issue Slip
of Tickets dated 09.5.2001 shows that
aforesaid Way Bills No.8488001 to
8488500 were in ten pads. Ali Ahmad
Naqvi, Senior Clerk, as per department,
opened pads and found one pad missing
in the bundle of 10 pads. Entire enquiry
report nowhere shows that all the ten pads
were made to receive to petitioner and
thereafter he lost one pad containing Way
Bills No.8488051 to 8488100. No witness
was examined to prove aforesaid charge;
no document is referred to in enquiry
report to prove the same and even in
respect of alleged loss, I do not find any
evidence as to how loss was computed
and has been proved to be suffered by
UPSRTC. It is not even a charge that
those tickets were actually issued for
travel but no revenue come to be
deposited with UPSRTC causing actual
loss. Findings in respect of charges 1 and
3 are based on no evidence whatsoever,
hence cannot be sustained.

10. Now charge No.2 also relates to
alleged loss of one pad of Way Bills and
thereafter giving wrong information. Here
also I do not find any evidence
whatsoever discussed by Enquiry Officer
to prove that petitioner has given any
false information to anyone. In fact
chargs 2 and 3 have not at all been
discussed by Enquiry Officer and there is
no finding in respect thereof.

11. Now coming to charges 4, 5 and
6. I find that there is no discussion,
nothing has been stated by Enquiry
Officer
and
without
recording
any
finding, Enquiry Officer has held all the
charges proved. Unfortunately, similar
6 All. Mohd. Ayub Khan Vs. U.P. State Transport Corp. Ltd. & Ors. 807
error has been committed by Disciplinary
Authority as well as Appellate Authority.
I do not find anything to show as to what
material or evidence has been examined
by them and in what manner. In fact
inquiry report is wholly unreasoned and
non speaking and so are the orders of
disciplinary and appellate authorities to
hold all the charges proved.

12. It is well established in law that
an inquiry report which is non-speaking,
if has not discussed evidence and material
before
it
and
simply
recorded
its
conclusions, it is no inquiry report in the
eyes of law and is vitiated.

13. In Anil Kumar Vs. Presiding
Officer and others reported in AIR
1985 SC 1121, Court set aside an inquiry
report which did not contain discussion of
evidence and material on record as also
the stand taken by both the parties and
simply recorded its conclusion.

14. Relying on the aforesaid
decision in Anil Kumar (supra), a
Division Bench of this Court in Special
Appeal No. 1196 of 1999 (Committee of
Management Vs. Abdul Cadeer @
Abdul Qadir and others) decided on
14.07.2006, while setting aside a similar
inquiry report said;

"In the instant case, as noticed
above, the inquiry officer has not said
anything as to what was the material or
evidence on record on which her applied
his mind and thereupon reached to the
conclusion that the charges stand
proved. It is true that in the matter of
departmental proceeding scope of judicial
review is limited and the only thing to be
seen is as to whether there is any error in
the decision making process or there is
denial of adequate opportunity to the
delinquent in defending the charges or
there is any violation of substantive
provision of law but this Court will
reappraise the evidence and sit on appeal
over the order passed by the departmental
authority but it has to be seen whether
finding or conclusion is based on some
evidence or not. This Court can interfere
where it is found that proceeding is
conducted in violation of principle of
natural justice or of statutory rules
prescribing the mode for holding enquiry
or where the conclusion or finding
reached by the Inquiry Officer and the
disciplinary authority is based on no
evidence or where the conclusion or
finding is such that no prudent person
would have ever reached the same. As
noticed above, it does not appear from the
report of the inquiry officer that any
record or evidence was brought before
him by the department in support of the
charges on the basis of which he has
found him guilty of the charges. He has
held the petitioner-respondent no. 1 guilty
only on the ground that he did not appear
before him despite notice and, therefore,
the charges stand proved. This, in fact, is
no inquiry in the eye of law and,
therefore, the order of dismissal based on
such inquiry report cannot sustain and
has to be quashed."
 (Emphasis added)

15. This view has been followed and
reiterated by another Division Bench in
Special Appeal No. 533 of 2004
(Chandra Pal Singh and others vs.
Managing Director, U.P. Co-operative
Federation and others) decided on
12.10.2006.

16. In the present case, since
petitioner has been held guilty of all the
808 INDIAN LAW REPORTS ALLAHABAD SERIES
six charges without showing any evidence
and
without
any
discussion,
entire
proceedings are vitiated in law.

17. In the result, writ petition is
allowed.
Impugned
orders
dated
30.04.2002 (Annexure 9 to the writ
petition) and 11.10.2006 (Annexure 15 to
the writ petition) are hereby set aside.
Petitioner
shall
be
entitled
to
all
consequential benefits. However, this
judgment shall not prevent competent
authority to proceed afresh after the stage
of reply to charge sheet if it so decide, in
accordance with law.
----------
(2020)06ILR A808
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

WRIT A No. 881 of 2020

Manoj Kumar & Ors. ...Petitioners
Versus

State of U.P.& Ors. ...Respondents

Counsel for the Petitioners:
Sri Navin Kumar Sharma

Counsel for the Respondents:
C.S.C., Sri Santosh Kumar

A. Civil Law - U.P. Basic Education
(Teachers) Service Rules, 1981 - Rule 21
- Transfer Policy dated 02.12.2019 - Policy
Decision - Power of the Court to interfere -
The government policy dated 02.12.2019 is in
the nature of concession permitting inter
district transfer - It give some weightage or
preference to female assistant teachers or to
physical disable teacher for transfer which
may be for variety of reasons including social
reasons - It is a policy decision of the State
Government - A policy decision is in the
domain of the executive authority of the State
- The court should not embark on the
unchartered ocean of public policy and should
not question the efficacy or otherwise of such
policy so long it does not offend any of the
provisions of the Constitution of India or
Statute - Held - The aforesaid policy decision
of the State Government is logical. (Para 8, 9,
10 and 13)
Writ Petition dismissed (E-1)
Cases relied on :-
1. U.O.I. Vs Shankar Lal Soni, (2010) 12 SCC
563
2. Ehsan Khalid Vs U.O.I. & ors., (2014) 13
SCC 356
3. Netai Bag Vs St. of W.B., (2000) 8 SCC 262
4. Ram Singh Vijay Pal Singh Vs St. of U.P. &
ors., (2007) 6 SCC 44
5. Balco Employees Union (registered) Vs
U.O.I., (2002) 2 SCC 333
6. Pearless General and Investment & ors. Vs
R.B.I., (1992) 2 SCC 343
7. Premium Granites Vs St. of Tam., (1994) 2
SCC 691
8. R.K. Garg Vs U.O.I., (1996) 2 SCC 405
9. Bhavesh D. Parish Vs U.O.I., (2000) 5 SCC
471
10. Narmada Bachao Andolan & ors. Vs U.O.I.,
(2000) 10 SCC 664
11. M.P. Oil Extraction Vs St. of M.P. (1997) 7
SCC 592
12. St. of Punjab Vs Ram Lubhaya Bagga,
(1998) 4 SCC 117
13. U.O.I. Vs Shankar Lal Soni, (2010) 12 SCC
503
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Navin Kumar Sharma,
learned counsel for the petitioners,